United States District Court, W.D. North Carolina, Charlotte Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER comes before the Court on a Motion for Summary Judgment by Defendant Raven Mack. (Doc. No. 14).
A. Procedural Background
Pro se Plaintiff Kenneth E. Hayes is an inmate of the North Carolina Department of Public Safety ("NCDPS"), currently incarcerated at Lanesboro Correctional Institution. Plaintiff filed this action on February 20, 2014, pursuant to 42 U.S.C. § 1983, in which he alleged that Defendant Raven Mack subjected him to excessive force on November 14, 2013. On April 7, 2014, the Court conducted a frivolity review, allowing Plaintiff's claim to proceed. (Doc. No. 7).
On March 23, 2015, Defendant filed the pending motion for summary judgment. (Doc. No. 14). On March 25, 2015, this Court entered an order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the requirements for filing a response to the motion for summary judgment and of the manner in which evidence could be submitted to the Court. (Doc. No. 16). Plaintiff did not file a response to the summary judgment motion, and the time to do so has passed.
B. Factual Background
1. The Alleged Excessive Force Incident and the Summary Judgment Evidence
a. Plaintiff's Allegations
As noted, Plaintiff did not respond to the summary judgment motion, and the time to do so has passed. Therefore, the only materials presented by Plaintiff as to his claim are the allegations in his Complaint. Plaintiff alleges in the Complaint that on November 14, 2013, while he was housed at Lanesboro Correctional Institution ("Lanesboro"), he was leaving his pod to go to the yard for outside exercise when Defendant told him to return to his pod because the yard was closed. (Doc. No. 1 at 4). He further alleges that Defendant later called for three inmates at a time to go to the library. Plaintiff alleges that he, along with two other inmates, left the pod to go to the library when Defendant ordered him back to the pod. Plaintiff alleges that he informed Defendant to stop singling him out. (Id.). Plaintiff alleges that while standing and waiting to be let back into his pod Defendant unexpectedly sprayed him in the eyes, nose, and mouth with mace "for no apparent reason." (Id. at 5). Plaintiff alleges that before Defendant sprayed him with the mace, Plaintiff "did not threaten defendant Mack in any fashion, wasn't aggressive in any way or break any prison rules." (Id.). Plaintiff alleges that he was treated for his exposure to mace and then placed in segregation. (Id.). Plaintiff alleges that he has been experiencing blurry vision, nose bleeds, sinus irritation, severe headaches, mental anguish, and emotional distress due to his mace exposure. (Id.).
b. Defendant's Summary Judgment Materials
In support of the summary judgment motion, Plaintiff has submitted the affidavit of Defendant Mack, attached with the NCDPS Use of Force Policy. See (Doc. No. 14-2: Mack Aff.). According to Defendant Mack's affidavit, on November 14, 2013, Defendant Mack was working the Moore Unit, Side 2. (Id. at ¶ 4). Defendant was in the process of signing inmates out for library call when Plaintiff exited his assigned pod. (Id.). Defendant ordered Plaintiff to return to his pod three times. (Id.). Defendant gave Plaintiff another direct order to return to his pod, at which time Plaintiff appeared to walk toward Defendant. (Id.). However, Plaintiff stopped turned around and stated, "Fuck this, I'm tired of these stupid ass c/o's." (Id.). Plaintiff then stepped toward Defendant Mack and stated, "Fuck this, I'm turning up!" (Id.). Defendant understood that the term "turning up" is common street slang meaning that the individual intends to act out. (Id. at ¶ 5). Defendant believed that, by using that term and stepping toward her in violation of a direction order, Plaintiff intended to assault her. (Id.). Therefore, Defendant deployed two, ½ second bursts of OC pepper spray into Plaintiff's eyes per her training as a means to prevent an attack and maintain order. (Id.). Defendant was placed in handcuffs and escorted to segregation. (Id. at ¶ 6). Medical staff then examined and cleared Plaintiff, determining that there was no need for further treatment. (Id. at ¶ 7). According to Defendant Mack's affidavit, Plaintiff did not suffer an injury. (Id.).
Defendant has also presented the affidavit of non-party David Mitchell, Facility Administrator at Lanesboro, attached with the Incident Report and Administrative Remedy Procedure Grievance and Response. See (Doc. No. 14-1: Mitchell Aff.). Mitchell is responsible for overseeing all custodial operations and staff in his supervisory chain of command to ensure compliance with departmental policies. (Id. at ¶ 5). This includes reviewing use of force incidents at Lanesboro following an investigation. (Id. at ¶ 6). Mitchell states in his affidavit that he reviewed the incident report related to the November 14, 2013, use of force investigation involving Plaintiff and Defendant. Mitchell's account of the incident corroborates Defendant's account. Mitchell states in his affidavit that after the use of force investigation, NCDPS management determined that the force used by Defendant on November 14, 2013, against Plaintiff was done in accordance with NCDPS policies and procedures. (Id. at ¶¶ 16-19). The ...