*1 Plaintiff Lameek Johns, a Virginia prisoner appearing pro se, filed this suit under 42 U.S.C. § 1983, asserting that Defendant E. Gwinn violated his rights under the Eighth Amendment while Johns was housed at Red Onion State Prison (“ROSP”) in April 2016. Verified Compl. 1–2, 10, ECF No. 1. The matter is before the undersigned for a bench trial and Report and Recommendation on the merits of Johns's excessive-force claim against Gwinn in his personal capacity, see ECF No. 52, as well as Johns's motion seeking discovery sanctions, ECF No. 44.

I. The Legal Framework

Section 1983 provides a cause of action for “impos[ing] civil liability on any person who, under color of law, deprives another person of federal constitutional or statutory rights ... elsewhere conferred.” Daniczek v. Spencer, 156 F. Supp. 3d 739, 747 (E.D. Va. 2016). To prevail under § 1983, a plaintiff must show both that he or she suffered “the violation of a right secured by the Constitution and laws of the United States” and that the “deprivation was committed by a person acting under color of state law,” West v. Atkins, 487 U.S. 42, 48 (1988). See Daniczek, 156 F. Supp. 3d at 747. The facts material to the claim will depend on the specific federal right at issue, see Iqbal v. Ashcroft, 556 U.S. 662, 677 (2009); the capacity in which the plaintiff sued the named defendant, see Kentucky v. Graham, 473 U.S. 159, 165–68 (1985); and, relatedly, the nature of relief sought against that defendant, see Biggs v. Meadows, 66 F.3d 56, 60–61 (4th Cir. 1995). See, e.g., Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (“Section 1983 plaintiffs may sue individual-capacity defendants only for money damages and official-capacity defendants only for injunctive relief.”). Johns seeks $18,000 in damages against Gwinn in his individual capacity, allegedly for violating Johns's rights under the Eighth Amendment while Gwinn was working as a state correctional officer.

“The Eighth Amendment prohibits the infliction of ‘cruel and unusual punishments.’ In the prison context, it protects inmates from inhumane treatment and conditions while imprisoned.” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (quoting U.S. Const. amend. VIII) (other quotation marks omitted). “An inmate's Eighth Amendment claim involves a subjective component and an objective component.” See id. Specifically, the inmate must show that the “prison official acted with a sufficiently culpable state of mind (subjective component),” and that the “deprivation suffered [by] or injury inflicted on the inmate was sufficiently serious (objective component)” to warrant constitutional protection. Id. “These requirements spring from the text of the amendment itself; absent intentionality, a condition imposed on an inmate cannot properly be called ‘punishment,’ and absent severity, such punishment cannot be called ‘cruel and unusual.’ ” Id. (citing Wilson v. Seiter, 501 U.S. 294, 298–300 (1991)). The substantive facts needed “to prove each component, however, ‘var[y] according to the nature’ ” of the challenged event or condition. Id. (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)).

*2 Johns alleges that Gwinn “spray[ed] pepper spray in [Johns's] face, eyes, and chest and into [the] cell for 3 to 4 minutes continuously” after the two men “exchang[ed] words with one another.” Verified Compl. ¶ 14, 16. The Fourth Circuit has long held “that it is a violation of the Eighth Amendment for prison officials to use mace, tear gas, or other chemical agents,” including pepper or oleoresin capsicum (“OC”) spray, “in quantities greater than necessary” to maintain or restore discipline “or for the sole purpose” of inflicting pain on an inmate. Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (quotation marks omitted); see Iko, 535 F.3d at 240. Thus, Johns must prove by a preponderance of the evidence “not only that [this] assault actually occurred,” but that Gwinn acted “maliciously and sadistically rather than as part of a good-faith effort to maintain or restore discipline,” Wilkins v. Gaddy, 559 U.S. 34, 40 (2010) (internal quotation marks omitted). See Springer v. Brown, No. 7:12cv158, 2013 WL 4040153, at *7 (W.D. Va. Aug. 7, 2013); Blount v. Davis, No. 7:11cv91, 2013 WL 2636261, at *6 (W.D. Va. June 12, 2013). “As the Supreme Court has explained, ‘the burden of showing something by a preponderance of the evidence simply requires the trier of fact to believe that the existence of a fact is more probable that its nonexistence.’ ” United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010 (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993)) (alterations omitted)).

II. Background

In March 2018, Johns filed a one-count Verified Complaint alleging that on April 5, 2016, Gwinn maliciously sprayed him with pepper spray. ECF No. 1. Gwinn declined to file a motion for summary judgment because, while he denied Johns's allegations and believed them to be “utterly fabricated,” he was “constrained to admit” that the parties' conflicting versions of events presented a genuine issue of material fact best resolved at trial. ECF No. 18. The parties attended judicial mediation on February 25, but the case did not settle. ECF No. 42. In May, the presiding District Judge denied Johns's motion for summary judgment, ECF No. 31, and referred the case to me for a bench trial and written report setting forth appropriate findings of fact, conclusions of law, and a recommended disposition for Johns's sole § 1983 claim against Gwinn. ECF No. 52. The relevant evidence in the record is summarized below.[1]

A. Johns's Declaration

Before trial, Johns submitted a Verified Complaint, parts of which were “based upon his own personal knowledge and set forth specific facts admissible in evidence,” Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991), to support his excessive-force claim against Gwinn, ECF No. 1. Cf. United States v. Stevens, 813 F. Supp. 2d 758, 765 (W.D. Va. 2011) (weighing petitioner's hearing testimony against his prior sworn statements in determining whether his allegations were credible); Ajaj v. United States, 479 F. Supp. 2d 501, 517 n.4 (D.S.C. 2007) (noting that a court may treat a verified complaint as affidavit or declaration evidence under Rule 56(c)(4) as long as the allegations are based on the plaintiff's personal knowledge and set out facts admissible in evidence (citing Williams, 952 F.2d at 823)). Johns claimed that his encounter with Gwinn on April 5 started sometime between 7:10 a.m. and 7:30 a.m. while Gwinn was escorting Nurse Adams and Nurse Surratt through D-3 pod as they handed out medications. See Verified Compl. ¶¶ 6–7, 14. As Gwinn passed Johns's cell (D-307), he saw Johns standing behind the door looking at them through the window. Id. ¶ 9. He called Johns some vulgar names, and Johns responded in kind. See id. ¶¶ 10–15.

*3 What allegedly happened next is the crux of Johns's excessive-force claim against Gwinn. According to Johns, the officer

Id. ¶ 16 (spelling and capitalization corrected). Johns spent the next hour telling Officer Lewis, Officer Williams, Sergeant Fleming, and Unit Manager Swiney that Gwinn had used pepper spray on him. See id. ¶¶ 17–33. He pleaded for medical attention while “coughing, gagging, sneezing, choking, [and] gasping for air,” id. ¶ 21, but the prison nurses and corrections officers “all ignored” him, id. ¶ 25. See id. ¶¶ 24–27.

Fleming and Swiney escorted Johns to the D building's vestibule where they met Sergeant Owens. Id. ¶ 29. Someone “took some pictures” of Johns before Fleming and Owens escorted him across the yard to the B building. Id. ¶¶ 29, 31. Once in B-3 pod, Johns “immediately” told Captain Steele that he “had been pepper sprayed without provocation” and still had not received any medical attention. Id. ¶ 33. Steele told Fleming and Owens to let Johns describe his symptoms to Nurse Mullins, who was nearby conducting pill pass. Id. ¶ 35. Johns “informed” the nurse that he “had been pepper sprayed” and that his “face, eyes, arms, [and] chest were burning.” Id. ¶ 36. Nurse Mullins “assessed” Johns and told Fleming and Owens “to put [him] in the shower.” Id.

B. Trial Testimony & Documentary Evidence

Johns called inmate Michael Watson as a witness at trial. Watson testified that on April 5, 2016, he was housed in cell D-308, which was “right beside” John's cell D-307. Watson recalled that Gwinn was standing outside Watson's cell while nurses were doing pill pass that morning. One of the nurses, possibly Surratt, told Gwinn that Johns “was masturbating in his cell while she was signing his chart.” Gwinn went over to Johns's cell door. Watson “heard the slider open” on that cell. “A few second later,” Watson heard Johns say “ ‘he shot me in my face.’ ” Johns “started yelling to the nurses, ‘[I] know you seen him shooting that pepper spray in my face’ ” and “hitting the [intercom] to get their attention [s]o he could receive medical help.” Watson thought Sergeant Woods was in the control booth answering the intercom that day, and he recalled that Woods “basically paid Johns no attention.” Johns “was saying ‘I need to be decontaminated, I got pepper spray in my face, I can't breathe. I can't see.’ ” Watson also “smelled it coming through” the vent between their cells. He testified on cross-examination that “maybe 15, 20 seconds” passed between the time he heard Johns shouting and the time he smelled the pepper spray. He also testified that D-3 cells have sinks in them, but that he could not hear if there was water running from the sink in Johns's cell. Johns and Watson had been housed in D-5 pod together before moving to D-3 pod. Watson estimated that he had been in D-3 pod “for some weeks” before Johns arrived. They were transferred from D-3 pod to B-3 pod on the same date. Watson is serving a term of incarceration on at least one felony conviction. He has also been convicted of larceny, robbery, and unlawfully possessing a firearm.

*4 Johns testified on his own behalf. On the morning of April 5, 2016, Johns was standing behind his cell door looking out the window watching Gwinn and the nurses conducting pill pass. Johns “heard Officer Gwinn say to Nurse Adams, ‘just leave that—you can leave that bitch right there that's standing by the door, to me.’ ” Johns told Gwinn, “ ‘I ain't no bitch,’ ” to which Gwinn responded, “ ‘well, I come up in that cell, I make you my bitch.’ Then [Johns] was like, ‘no, you a bitch.’ ” Gwinn had reached Watson's cell, D-308, “by the time the argument ended between [Johns] and him.” Johns could not recall whether Gwinn opened the box on Watson's cell before he “ran back” to Johns's cell. At that point, Gwinn removed his pepper spray canister from its holster, opened the feeding box and tray slot on Johns's cell, stuck his arm all the way through the box, pointed the canister at Johns's face, and sprayed the chemical on him. Johns “didn't move. [He] just stayed there” as Gwinn sprayed him. Afterwards, Johns “screamed to the nurses, ‘are y'all not going to provide me with no medical attention? You just seen me get sprayed.’ ” Adams and Surratt “ignored” him as they left D-3 pod. Johns then noticed Officer Williams in the control booth. He tried to reach Williams using the intercom button in his cell. Williams answered the intercom by “tapping on” and “screaming” into the microphone. He “totally ignored” Johns while “laughing and giggling and joking real[ly] loud.”

A “few minutes” later, Gwinn and Lewis entered D-3 pod to take inmates to the showers. Johns, who was “still standing at the [cell] door,” told Lewis that Gwinn had sprayed him with pepper spray and that he needed medical attention. Lewis ignored him. “[M]aybe another 10 or 15 minutes passed” before Fleming came into the pod. Johns told Fleming that Gwinn “had just gassed him” and Fleming “ ‘was like, well, what did you do?’ ” Johns said he didn't do anything. Johns recalled that Fleming “pulled out his [pepper] spray as if he was about to spray [him], too, for no reason.” Then he “started calling [Johns] a baby raper, child molester, all kind of different names.” Fleming told Johns to pack up his stuff and that he would be back to move him. He returned about fifteen minutes later with Unit Manager Swiney, followed by Sergeant Owens. The officers escorted Johns to the vestibule near the front of the building. They had a handheld camera and “recorded [Johns's] body and stuff.” At least four officers were present while they “made the video in the vestibule.” Johns recalled that Swiney “kept saying ‘it's nothing wrong with you.’ ” After they “finished recording [Johns] with the handheld video,” the officers escorted him to the B building. Once in B-3 pod, Johns told Captain Steele that he was “exposed to OC” and that he “wasn't decontaminated” despite “request[ing] medical attention” from staff in D-3 pod. Steele had Nurse Mullins assess Johns while Johns “inform[ed] the nurse exactly what had happened.” Johns told her he “was pepper sprayed and stuff like that ... [and] that [his] skin was burning and [he] need[ed] to be placed in the shower.” Nurse Mullins “had officers place [Johns] in the shower” after he said his “skin was burning and [his] eyes [were] burning and stuff like that.” Plaintiff's Exhibit 3, a page from Johns's prison medical records, shows that he spoke to Nurse Mullins around 8:30 a.m. on April 5. Pl.'s Ex. 3, ECF No. 68-3. Under “Complaint and Treatment,” Nurse Mullins wrote “(C) OC spray utilized. Inmate was decontaminated[;] no injuries noted.” Id.

Johns testified on cross-examination that he moved from D-5 pod to D-3 pod a few days before April 5, 2016, because he “caught [a] charge.” D-5 pod was a “level six” security unit that housed inmates participating in a step-down program, whereas D-3 pod was a segregated housing unit. Johns had been housed in D-5 pod with Michael Watson before they both moved to D-3. He could not “recall who got moved first.” Johns also could not remember whether he had an Institutional Classification Authority (“ICA”) hearing on April 4, 2016, where he was told he was “being reclassified as a security level S offender.” If Johns did have that hearing, however, he would have known on April 5 that he was going to be moved to a different housing unit. Johns later testified that he “wasn't really mad about having to go back to level S” housing because he had been there “maybe three times” in the past eight years. If it did bother him, though, it was “[n]ot to the point[ ]” that he “became hostile about it.”

*5 Johns also testified that he encountered Gwinn sometime between 7:00 a.m. and 7:45 a.m. on April 5. Officers had already served breakfast and collected meal trays from each inmate in D-3 pod. Johns could not remember whether he received any medications that morning. He “might have refused” prescribed medications, if any, that he sometimes takes for pain or mental-health issues. Johns testified that Gwinn noticed him standing behind the cell door as Gwinn and Adams were walking towards Watson's cell. He recalled having “some interaction” with Gwinn before April 5, because he had twice been placed in the housing unit where Gwinn was a floor officer. There was nothing unusual about their prior interactions. On this occasion, Gwinn said something to the nurse about Johns being a bitch, Johns said something back to him, and Gwinn “said something like, ‘if I come up in that cell, I will make you my bitch[.]’ ” Gwinn and the nurse continued toward Watson's cell. At some point—either “as soon as [Gwinn] said what he said” or “[m]aybe 2 or 3 minutes” after Johns “told him, ‘I ain't your bitch’ ”—Gwinn came back to Johns's cell door. Johns again testified that he saw Gwinn remove his OC canister from his belt, open both the hinged top on the feeding box and sliding door on the tray slot attached to the cell door, bend down into the box, stick his hand all the way through the slot, and start spraying Johns with OC spray.

Johns said it takes an officer “a second” to fully unlock and open the feeding box and tray slot attached to the cell doors. Gwinn's hand was physically inside Johns's cell for “like 2 to 3 minutes.” Johns did not “remember [Gwinn] actually just holding the button down,” but he did have his finger on the button the entire time. It was more like Gwinn was “repeatedly pushing the button up and down” to deploy bursts of pepper spray. Johns “just stood there” because “[i]t was too late to move away from the door” and he was “just in shock” once the first “stream of liquid” OC “caught [him] a little on [his] chin and the side of [his] face.” He did not say or do anything until Gwinn withdrew his arm and closed the feeding box. Johns admitted that he had a sink in his cell, and he knew based on past exposure to a “more intense” type of OC spray (the kind that comes in a “big can” officers “use when you have a cell extraction”) that water could “get the gas off” of his skin and out of his eyes. Johns did not turn on the sink because he “was seeking medical attention.”

Johns screamed “for medical attention like to the nurses” and asked them if they were “going to just stand [t]here and watch” Gwinn spray him and “not going to provide [him] with no medical attention.” The nurses ignored him and left the pod with Gwinn. Johns “immediately” tried to get Williams's attention using the intercom, but the officer just tapped on the microphone while “laughing, joking, and ignor[ing]” Johns's “plea for medical attention.” Ten or fifteen minutes later, Johns told Lewis that Gwinn had just sprayed him and “scream[ed]” at Lewis and Gwinn to give him medical attention. They both ignored him. Sergeant Fleming entered D-3 pod around the same time, or “probably about 15 minutes” after Gwinn sprayed Johns. To Johns, it seemed like Fleming “came to [his] cell to antagonize [him] some more because he had his OC spray out in his hands as if he was going ... to spray [Johns] with his pepper spray. That's when he started calling [Johns] a baby raper ... and stuff.” In response, Johns “told him that [he] needed some medical attention.” Fleming told Johns to pack his belongings so he could move to a different housing unit.

Fleming left D-3 pod and came back with Swiney. Johns told Swiney that he needed medical attention, and Swiney said he would talk to him once they left the pod. “Some investigators or some guys,” one of whom “had a handheld video camera,” were already in the D building's vestibule when Fleming, Swiney, Owens, and Johns arrived. Johns told Swiney what happened and that his skin and eyes were burning. Swiney “kept saying, ‘it ain't nothing wrong with you,’ ” but Johns “was like, yeah, I need medical attention.” Then Swiney “had the guy with the handheld video camera” record Johns “to see if [he] had any other injuries other than [him] informing [Swiney] that [he] was gassed.” Only Captain Steele “actually made it possible for [Johns] to be assessed and seen by Nurse Mullins.” Eight other ROSP employees (Gwinn, Adams, Surratt, Williams, Lewis, Fleming, Owens, and Swiney) all “[j]ust ignored” Johns “the whole time” he was complaining and asking for help. Johns is serving a term of incarceration on at least one felony conviction. He has also been convicted of offenses involving lying, cheating, or stealing.

*6 Gwinn and five other witnesses testified on Gwinn's behalf at trial. Gwinn was a correctional officer at ROSP on April 5, 2016, and was assigned to rotate through the D-1, D-2, and D-3 pods. At 6:05 a.m., Gwinn made a note in the D-3 logbook indicating that the food cart had arrived. See Def.'s Ex. 1, ECF No. 68-4. He did a “security check” at 8:04 a.m. and noted that “all appear[ed] secure.” Gwinn did not recall escorting nurses on pill pass, but “[a]fter looking at the logbook,” he testified that he “was the officer [who] took the nurses around.”

Gwinn went by Johns's cell “a couple different times” that morning. One time, he saw Johns “standing up on his sink” with his “hand either on the wall or near the sprinkler head ... like he was going to break the sprinkler head.” Gwinn knew from experience that a broken sprinkler would release water from the fire system into the inmate's cell and the entire pod. Gwinn thought he “just told [Johns] to get down.” Johns “probably said something back,” but he got down from the sink as ordered. Gwinn testified that he did not open the feeding box or tray slot on the cell door during this exchange. He explained that the box extends from the cell door about eighteen inches and has a hinged lid on top that must be unlatched and opened towards the ground. “If you're going to open up the slider, which you're only supposed to have one open at a time anyway,” then you must separately unlatch that door. Gwinn usually used both hands to access an inmate's cell through the feeding box—one to remove the latch and the other to flip open the top. He could not have done this while holding an OC canister in one hand.

Gwinn did not remember whether he removed his OC spray canister from its holster during his interaction with Johns. It was “possible” he put his hand on his hip near the holster just in case Johns disobeyed his order and broke the sprinkler head. In the “little over a year” that he'd worked for the Virginia Department of Corrections (“VDOC”), however, Gwinn had never used OC spray on an inmate. Thus, he was “100 percent certain” that he “never actually sprayed” OC on April 5, 2016.

Gwinn testified that if he did use pepper spray, then he would have had to document the event in the pod logbook. Defendant's Exhibit 1, three pages from the D-3 pod logbook dated April 5, 2016, does not reflect that OC spray was used on Johns that day. See Def.'s Ex. 1. Gwinn also would have had to complete an internal incident report—as required “if anything unusual” happens—if he used OC spray on an inmate. Gwinn did not fill out an incident report that day. He also did not write Johns a disciplinary charge for standing on the sink because Johns complied when Gwinn ordered him to get down. Johns “seemed a little irritated” about something that morning, but he “didn't do [any]thing wrong.” Gwinn does not remember speaking with Johns before or after this exchange—he certainly did not call Johns a “bitch” or threaten to “come up in that cell” and make him his bitch. Gwinn also testified that he did not, and would not, put his hand inside of an inmate's cell while holding an OC canister. “That would be pretty foolish” because the inmate could “grab a hold of your arm and break your arm or pull you in the slot. There's numerous things that he could do to you.” So, it would “really be dumb” for him “to stick [his] hand all the way in with a can of gas into the cell.” Gwinn has never been disciplined for inappropriate use of force while employed as an ROSP corrections officer.

Sergeant Fleming, Officer Brandon Lewis, Sergeant Michael Williams, Unit Manager Walter Swiney, and Officer Mark Mullins testified on Gwinn's behalf. All five were working in ROSP's D building on April 5, 2016. Fleming spoke to Johns around 7:10 that morning and told Johns that he would be moving to a different building. Fleming testified both that Johns “made no statement at that time about it” and that Johns “refused and said he was not going” to the other building. After completing his rounds, Fleming “obtained OC from ... the medical department in case there was any further incident.” He explained that he needed prior approval to make sure using OC spray is not medically contraindicated. Fleming did not share this information with other ROSP staff because “it was just approval for [him] to use the gas.” “Usually” only “the building sergeant or above[,] lieutenants,” can request medical clearance. Gwinn testified that, as a corrections officer, he “cannot request OC approval. It has to be from a sergeant or above.”

*7 Plaintiff's Exhibit 2, a page from Johns's Health Services Complaint and Treatment Form, indicates that “Security request[ed] approval for use of OC spray/Electronics” twice on April 5, 2016—first at 7:25 a.m., and again at 8:10 a.m. Pl.'s Ex. 2, ECF No. 68-2. “P. Adams, LPN,” appears to have written and signed both entries. “No contraindications [were] noted” on her review of Johns's chart. Id. Fleming testified that he “only contacted [medical] once that day” about Johns; he did not recall what time he spoke with them.

Fleming testified that he did not use the OC spray on April 5 because Johns complied with all orders and was escorted out of D building without incident. When they entered the building's vestibule, Johns “advised” Fleming and the assisting officers for the first time that he had been exposed to OC spray. Johns had not mentioned this while they were still in his cell. Fleming recalled that he did not smell OC on Johns's body and he was not under duress. “If you get sprayed, you're going to tear up, sweat. Your skin is going to be red. There was no indication of any of that.” Fleming testified that OC has “a very unique smell” that lingers in the affected area or on a person “for quite a while.” It also “tends to irritate” other people in the vicinity, so Fleming would have expected other inmates to say something if OC spray had been deployed. Fleming was “in and out” of D-3 pod “all day long” on April 5. No other inmate mentioned OC spray that day. If Fleming believed OC had been used on Johns, he would have “report[ed] and documented it” as prison policy requires when “any use of force” is used against an inmate.

A few weeks later, Fleming responded to Johns's Informal Complaint about this alleged incident. See Pl.'s Ex. 1, ECF No. 68-1. Johns alleged that between 7:10 a.m. and 7:30 a.m. on April 5, Gwinn opened the feeding box and tray slot on Johns's cell, “ben[t] over into the box and reach[ed] his arm into the cell through the tray slot ... with his pepper spray in his hand,” and sprayed Johns's eyes, face, and chest “for about 3 minutes.” Id. Johns “pleaded for an hour and a half” that he needed medical attention. Id. Adams, Gwinn, Surratt, and Williams all ignored him. Id. Johns did not mention a handheld video camera or suggest the alleged incident might have been captured on the pod's surveillance cameras. Fleming responded, “Your allegation has been reviewed and there is no evidence to support your claim.” Id. At trial, Fleming testified that he “reviewed the RapidEye footage of the incident” from D-3 pod “when [Johns] brought it to [his] attention in the vestibule” on the morning of April 5. He recalled the footage “showed that the tray slot” and feeding box on Johns's cell door were “not accessed” at any time between 7:00 a.m. and 8:30 a.m. that morning. “That's why [he] respon[ded]” that there was “no evidence” to support Johns's informal complaint.

Officer Brandon Lewis also testified for the defense. Lewis was working with Gwinn in the D-3 pod on April 5, but he did not “recall having any interaction with [Johns] at all on that day.” If Johns had told Lewis that Gwinn sprayed him with OC, Lewis “would have done a preliminary investigation” and notified Fleming. “He would have taken that seriously.” He also “would have been able to detect” if OC spray was used because it has “a very pungent” odor. “You can ... tell whether OC has been administered. It's a very strong smell.”

Officer Michael Williams was in the D building's control booth on April 5. Williams could see down into the D-3 pod from his post in the control booth. The booth's windows are usually “open at all times” so officers can “hear what's going on.” Williams testified that the distance between the control booth and Johns's cell, D-307, was “approximately 20 yards. Maybe a little less.” The line of sight to the cell door was at “a pretty steep angle,” but Williams would have been able to see the front of the door. He also would have noticed if an officer opened the feeding box and physically put his arm inside the cell for two or three minutes. Williams “probably” would have “holler[ed] down there to see if [the officer] was all right” because he would not have known if “the inmate ha[d] a hold of his arm or what's going on.”

*8 Williams also testified that the control booth was equipped with a two-way intercom system. When an inmate hit the button in his cell, the control board in the booth would light up and “[a] beeping noise would ensue.” Someone had to “press the intercom button” on the board to turn off the noise. Pushing a different button on the board “activates the microphone in the cell and you can hear what's going on.” Officer Mark Mullins was in the control booth with Williams on April 5. Williams recalled that Mullins was “running the control board” that day, so it would have been his job to answer the intercom. Williams found “it very unlikely that [Mullins] could have responded to something like” Johns's complaints and Williams “not have heard it” while “standing right there.” Williams was confident “no such conversation took place.”

If Williams heard Johns use the intercom to request medical attention, he “would have notified the building sergeant” and documented it in the control booth's logbook. Defendant's Exhibit 2, three pages from the control post logbook dated April 5, 2016, show that Swiney, Fleming, and another officer escorted Johns out of the D building at about 8:20 a.m. that day. See Def.'s Ex. 2, ECF No. 68-5. There is no indication that any inmate contacted the control booth seeking medical attention. Williams also testified that he “would have remembered” if OC spray was used in the pod because he “would have smelled it” from the control booth and he “would have had to write a report about it.”

Mullins testified that he was “in charge of the control board” used to access “all the doors in and out of the pods or out of all the cell doors.” He also maintained the control room's logbook, which was used to “document[ ] anything that goes on” in the pods. At 8:19 a.m. on April 5, for example, Mullins wrote in the logbook, “UM Swiney, Sgt. Fleming and C/O's exit [the D building] and escort offender from D307 to B3 pod.” Def.'s Ex. 2. Mullins had no reason to believe that OC spray was used in the D building's housing units on April 5. He would have been able to detect OC from the control booth because “it has a real[ly] strong smell and it also makes you choke up and makes your eyes water.” Mullins also did not hear Johns (or anyone else) complain that he had been exposed to the chemical. If he had, he would have “notif[ied] the building sergeant” and noted it in the logbook because “[a]ny use of force or anything has to be documented.” Like Williams, Mullins could have seen the front of cell D-307 from his position in the control booth. He has never seen an officer stick his or her arm through the tray slot while the prisoner was in the cell. If he saw that, he “probably would call the sergeant because[,] per policy, there's no reason to have your arm though the tray slot. You're not supposed to have both the slider and the box open at the same time.”

Unit Manager Walter Swiney was also working in D building on April 5, 2016. One day earlier, Swiney held an ICA hearing and recommended that Johns be reclassified as Security Level S due to his behavior. Johns would have been present for that hearing, and thus would have known as of April 4, 2016, that he was being reclassified.

Swiney testified that on April 5 he encountered Johns in the D building's vestibule as officers escorted him to another building. To his knowledge, no one in the vestibule had a handheld video camera with him. Johns told Swiney “that someone had gassed him, used OC spray.” Swiney “observed ... no signs” indicating Johns had been exposed to the chemical. He explained that exposure to OC affects a person's mucus membranes. “You're going to tear up. Your nose is going to run. You're going to be coughing.” Johns exhibited “[n]o signs of distress at all.” Swiney went to Johns's old cell in D-3 pod “to see if there [was] any evidence of any OC being used there.” There was “no odor,” and he received “no complaints” from any other inmates housed there.

*9 Swiney testified that he returned to his office to review the surveillance footage from “the time period” Johns said the incident occurred. He could not recall the exact timeframe, but “it was most likely from the start of th[e] shift that morning until the time that [he] spoke with Johns” roughly fifteen minutes earlier. Swiney recalled there “was one moment in the video you can see Officer Gwinn stop at [Johns's] cell, [where] it appeared that he may have removed his OC from the holster and then replaced it immediately and then continue his round. At no time was the tray slot accessed.” The surveillance camera cannot capture activity inside an inmate's cell, but it produces “clear video” footage of activity outside the cell. Swiney testified that he would have been able to see an officer at the cell door bend down, access the slot, and place his arm through the slot into the cell. “When [Swiney] reviewed the footage, at no time did [Gwinn's] hand open the tray slot” on Johns's cell door. Swiney relayed Johns's complaint to ROSP's investigator “and let him know that [he] reviewed the video and [saw] nothing.” The investigator “never got back with [Swiney] saying there were any discrepancies.” This surveillance footage was automatically recorded over some time after April 2016.

Swiney explained that the investigator is solely responsible for saving video footage “if there's an incident that occurred” or “upon request of the inmate for preservation of the evidence.” Swiney would have told the investigator if he thought footage needed to be preserved. He “definitely” would have asked the investigator to save footage showing “any use of force,” including “an officer plac[ing] his arm into a tray slot and us[ing] OC on an offender.” He also would have contacted medical “if there was any exposure or use of force” and instructed any staff involved to fill out internal incident report. An officer holding a can of OC spray, without more, does not qualify as a “use of force” incident. Swiney has been with VDOC for nineteen years. He has never been disciplined for anything, including a failure to investigate any reports of use of force.

III. Discussion

“In a non-jury case, the court must make specific findings of fact and separately state its conclusion of law.” Select Auto Imps. Inc. v. Yates Select Auto Sales, LLC, 195 F. Supp. 3d 818, 823 (E.D. Va. 2016) (citing Fed. R. Civ. P. 52(a)(1)). “The trial judge has the function of finding the facts, weighing the evidence, and choosing from among conflicting inferences and conclusions those which he considers most reasonable.” Id. This task typically involves evaluating witness credibility and, in doing so, the judge may “disregard testimony of any witness when satisfied that the witness is not telling the truth, or the testimony is inherently improbable due to inaccuracy, uncertainty, interest, or bias.” Id. (citing Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995); Burgess v. Farrell Lines, Inc., 335 F.2d 885, 889 (4th Cir. 1964)). When articulating its findings of fact, “[a] trial court must do more than announce statements of ultimate fact.” United Am. Ins. Co. v. Fauber, No. 5:16cv19, 2017 WL 3911019, at *3 (W.D. Va. Sept. 6, 2017) (citing United States ex rel. Belcon, Inc. v. Sherman Constr. Co., 800 F.2d 1321, 1324 (4th Cir. 1986)). The court is not required, however, “to make findings on all facts presented or to make detailed evidentiary findings .... The ultimate test as to the adequacy of the findings will always be whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for decision and whether they are supported by the evidence.” Darter v. Greenville Cmty. Hotel Corp., 301 F.2d 70, 75 (4th Cir. 1962).

A. Factual Findings

The undersigned makes the following factual findings based on the evidence presented at trial:

B. Legal Conclusions

To hold Gwinn liable under § 1983 for using excessive physical force against Johns while he was incarcerated, Johns must prove by a preponderance of the evidence “not only that the assault actually occurred,” but that Gwinn acted “maliciously and sadistically rather than as part of a good-faith effort to maintain or restore discipline,” Wilkins, 559 U.S. at 40 (internal quotation marks omitted). See Springer, 2013 WL 4040153, at *7; Blount, 2013 WL 2636261, at *6. He has not done so. Indeed, Johns's description of Gwinn's alleged behavior—that he unlatched the feeding box and tray slot on a high-security inmate's segregation cell, put his entire arm in the metal box and through the slot into the cell while holding a can of OC spray, and stayed in that position for at least two minutes while repeatedly spraying the inmate with a caustic liquid—is so outlandish that I cannot accept it at face value. Gwinn testified that it would be “dumb” and “pretty foolish” for him to do this because Johns could have pulled him into the cell or broken his arm. Mullins and Williams testified consistently that they would have intervened if they saw the feeding box's lid and tray slot open at the same time, let alone if a fellow officer were bent forward with his arm fully inside the inmate's cell. Neither had seen an officer do that before. Their testimony comported with how one would expect a reasonable corrections officer to behave around high-security prisoners. Johns's contrary version of events relied entirely on testimony—itself at times internally inconsistent—from Johns and a fellow inmate, both of whom are serving prison sentences on felony convictions. Fed. R. Evid. 609(a).

*12 Other evidence presented at trial shows persuasively that Gwinn did not use any force against Johns on April 5, 2016. First, the parties agree that the RapidEye surveillance video would have captured any activity outside cell D-307, including if Gwinn removed his OC canister from its holster or accessed the cell through the feeding box and tray slot attached to the door. I find Swiney's and Fleming's recollections of the footage to be credible and consistent with Gwinn's testimony that he did not access the feeding box or tray slot while talking to Johns on the morning of April 5. Swiney reviewed the footage within an hour after Johns told him about the alleged incident that morning and determined that the recording showed (at most) Gwinn remove his OC canister from its holster and replace it immediately before continuing his rounds. Swiney was confident that Gwinn did not access the tray slot. Fleming reviewed the surveillance footage before responding to Johns's Informal Complaint on April 27, 2016. He, too, was confident the video “showed that the tray slot” and feeding box on Johns's cell door were “not accessed” at any time between 7:00 a.m. and 8:30 a.m. that morning.

Second, John's evidence about his own reaction—both while Gwinn was spraying him and immediately afterwards—undercuts his version of events. Johns testified that he “just stood there” stoically for “2 to 3 minutes” while Gwinn doused his face and bare chest with a caustic chemical. Watson, on the other hand, testified that only “[a] few seconds” passed between the time he “heard the slider open” on cell D-307 and the time he heard Johns say, “ ‘he shot me in my face.’ ” Johns admitted that he had a sink in his cell, and he knew based on past exposure to a “more intense” type of OC spray (the kind that comes in a “big can” the officers “use when you have a cell extraction”) that water could “get the gas off” of his skin and out of his eyes. In his Verified Complaint, Johns stated under oath that “tears [were] running out of [his] eyes and it was extremely difficult for [him] to see because [his] eyes and face [were] burning” from the pepper spray. Verified Compl. ¶ 21. He spent almost an hour “coughing, gagging, sneezing, choking, [and] gasping for air while mucus ... continuously r[an] out of [his] nose,” and his “chest and arms [were] burning.” Id. Based on Johns's experience, it is reasonable to infer that he would have at least tried to wash the chemical off his body while waiting for medical attention. The fact that he did not do this belies his testimony that he was ever exposed to the gas.

Finally, the parties presented evidence that OC spray has a distinctive smell and triggers a physical reaction in the affected person. If Johns were exposed to the chemical, I would expect other people in the vicinity—especially those who personally interacted with him that morning—to remember observing, or even experiencing, these signs and symptoms. Fleming and Swiney testified consistently that they did not detect any signs of OC on Johns's person, in cell D-307, or anywhere in the D-3 pod. Lewis, Mullins, and Williams did not interact with Johns on April 5, but they also testified consistently that they had no reason to believe OC spray was used in D-3 pod that morning. Nurse Mullins's medical note simply recorded John's subjective complaint that OC spay was “utilized.” It did not confirm this event actually happened. All of this evidence shows convincingly that Johns has failed to carry his burden to show by a preponderance of the evidence that Gwinn used any force against him on April 5, 2016.

IV. Discovery Sanctions

Before trial, Johns filed a “Motion for Spoliation Holding [ ] and Sanction” asserting that ROSP officials should have saved the RapidEye surveillance footage from April 5, 2016. ECF No. 44. Spoliation is “the destruction or material alteration of evidence or ... the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). A party seeking spoliation sanctions must show that spoliation occurred and that the requested sanctions are warranted under governing law. Blue Sky Travel & Tours, LLC v. Al Tayyar, 606 F. App'x 689, 698 (4th Cir. 2015); Sampson v. City of Cambridge, 251 F.R.D. 172, 181 (D. Md. 2008) (citing Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450–51 (4th Cir. 2004)). Rule 37(e) provides the legal framework for evaluating spoliation claims involving otherwise discoverable electronically stored information (“ESI”), including recorded video or audio, not preserved for litigation. See Jenkins v. Woody, No. 3:15cv355, 2017 WL 362475, at *12, *14 (E.D. Va. Jan. 21, 2017). Under this Rule,

Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 104 (E.D. Va. 2018). Here, the parties agree that the RapidEye footage was ESI that has been “lost” and cannot be “restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e); see Second Aff. of W. Swiney ¶¶ 5–6 (May 7, 2019), ECF No. 48-2. They disagree whether the footage “should have been preserved in the anticipation ... of litigation,” whether it was lost “because a party failed to take reasonable steps to preserve it,” and, if so, whether sanctions or curative measures are appropriate under Rule 37(e).

Johns has not presented any evidence that he asked ROSP officials to preserve the footage, see Second Swiney Aff. ¶ 7, or that ROSP officials themselves reasonably should have known the footage could be relevant to anticipated litigation, see Blue Sky Travel, 606 F. App'x at 698; Silvestri, 271 F.3d at 590; Charter Oak Fire Ins. Co. v. Marlow Liquors, LLC, 908 F. Supp. 2d 673, 679 (D. Md. 2012). Swiney attested that he “personally reviewed the RapidEye video surveillance for April 5, 2016, in order to respond to [Johns's] informal complaint” a few weeks after the incident. Second Swiney Aff. ¶ 3. That footage “did not substantiate” Johns's claim that Gwinn opened the cell door's “tray slot and administered OC spray into his cell.” Id. Instead, it “confirmed” Gwinn's contemporaneous report that he removed his OC canister from its holster while speaking to Johns on April 5, but that he never opened the tray slot or sprayed OC into Johns's cell. First Aff. of W. Swiney ¶ 4 (Sept. 13, 2018), ECF No. 38-2. Thus, “there was nothing to report” and no reason under VDOC policy to retain the footage. Second Swiney Aff. ¶ 8.

At trial, Johns suggested that the footage might have corroborated his version of events. Having never watched the video, however, he could only speculate about its contents. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 803 F. Supp. 2d 469, 498 (E.D. Va. 2011) (in the spoliation context, a party must establish relevance “by offering probative evidence, not the hyperbole of argument,” that the lost materials were “likely to have been favorable to its case”); Sampson, 251 F.R.D. at 180 (to establish relevance in the spoliation context, a party must show “a reasonable possibility, based on concrete evidence rather than fertile imagination, that access to the lost material would have produced evidence favorable to his cause”). Fleming testified that he reviewed the surveillance video shortly after Johns reported the incident on April 5, and determined that it contradicted Johns's allegations—it “showed that the tray slot” and feeding box on Johns's cell door were “not accessed” at any time between 7:00 a.m. and 8:30 a.m. that morning. Swiney's trial testimony, based on his recollection of reviewing the same video on the morning of April 5, corroborated Fleming's testimony.[2] The video showed that “[a]t no time was the tray slot accessed” while Gwinn was outside Johns's cell door. Thus, it could not possibly have shown Gwinn putting his arm through the slot and spraying Johns with OC spray during that timeframe. On the record before the Court, “it would be sheer speculation to conclude” that Johns's ability to access the lost video “would have produced evidence which a reasonable factfinder could conclude supported” his excessive-force claim against Gwinn. Sampson, 251 F.R.D. at 1883. Accordingly, his “Motion for Spoliation Holding [ ] and Sanction,” ECF No. 44, must be denied.

V. Conclusion

*14 Johns has not shown by a preponderance of the evidence that Gwinn used any physical force against him on April 5, 2016. Accordingly, Gwinn is entitled to judgment in his favor and the action should be dismissed with prejudice.

Notice to Parties

Notice is hereby given to the parties of the provisions of 28 U.S.C. § 636(b)(1)(C):

Failure to file timely written objections to these proposed findings and recommendations within 14 days could waive appellate review. At the conclusion of the 14 day period, the Clerk is directed to transmit the record in this matter to the Honorable Norman K. Moon, Senior United States District Judge.

The Clerk shall send certified copies of this Report and Recommendation to the parties.