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Ashe v. Wakins

United States District Court, W.D. North Carolina, Bryson City Division

January 31, 2017

KENNETH ELDON ASHE, Plaintiff,
v.
KEITH WATKINS, Captain of Jail, Cherokee County Detention Center, in Official & Personal Capacity; SHARON MOSS, Detention Officer, In Official & Personal Capacity; DO. FNUBEASLEY, Cherokee County Detention Center, in Official & Personal Capacity; SGT. FNU MEL, Cherokee County Detention Center, in Official & Personal Capacity, Defendants.[1]

          ORDER

          Frank D. Whitney, United States District Judge

         THIS MATTER is before the Court on consideration of Plaintiff s pro se amended complaint which he filed pursuant to 42 U.S.C. §§ 1983, and Defendants' motion for summary judgment.[2]

         I. BACKGROUND

         On July 7, 2013, Plaintiff was detained in the Cherokee County Detention Center (CCDC) within the Western District awaiting sentencing on a federal drug charge for conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. See (United States v. Ashe. 2:12-cr-00033-MR-22 (W.D. N.C. 2012)).[3] Plaintiff was housed with seven other inmates in A-Pod, and at around 5 p.m. on July 7, Officer Creasman opened the door to Plaintiffs cell in order to allow Plaintiff and his fellow inmates to eat dinner. Around 5:45 p.m. Officer Creasman notified other officers that assistance was needed in A-Pod. Officers Beasley, Creasman, Moss and Sgt. Nicely responded and observed Plaintiff "yelling and cursing about being assaulted and threatening" the officers jobs because he had been assaulted by two inmates, Crowe and Bird. (Doc. Nos. 44-4: Beasley Decl. ¶ 5; 44-5: Moss Decl. ¶ 4). Plaintiff was removed from his cell and escorted to the booking area and questioned about the fight. Crowe and Bird were taken from A-Pod and placed in maximum security cells and Plaintiff was never housed with them after July 7. Although CCDC has a procedure whereby an inmate may file a written grievance, Plaintiff never filed a grievance regarding the July 7 attack. (Id., Doc. No. 44-2: WatkinsDecl. ¶ 10).

         II. STANDARD OF REVIEW

         Summary judgment is appropriate in cases where there is no genuine dispute as to a material fact and it appears that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A court is bound to enter summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett 477 U.S. 317, 322 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587. (1986). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48 (1986) (italics in original). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted).[4]

         III. DISCUSSION

         A. Failure to protect

          In order to "state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, (1988) (internal citations omitted). Here, Plaintiff appears to allege the detention officers that were on duty when he was assaulted by Bird and Crowe knew the assailants had a propensity for violence and that the officers therefore had an obligation to protect him from a potential assault. (Doc. No. 22: Amended Compl.).

         Claims regarding conditions of confinement brought by pretrial detainees in state custody are examined under the due process clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). "The due process rights of a pretrial detainee are at least as great as the eighth amendment protections available to the convicted prisoner . . ." Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) (citing City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983)). "[W]hen the State takes a person into custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989) (internal citation omitted). In Kingsley v. Hendrickson, the Supreme Court held that with regard to a pretrial detainees' claim of a due process violation, the detainee need only show that the officers' actions were "objectively unreasonable." 135 S.Ct. 2466, 2472-73 (2015).

         To be sure, the Eighth Amendment imposes a duty on prison officials "to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal citation omitted). To establish a claim under § 1983 for failure to protect from violence, an inmate must show; (1) "serious or significant physical or emotional injury, " De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003); and (2) that the prison official has a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834. Simply put, in order to succeed on a claim of deliberate indifference to Plaintiffs safety, Plaintiff must show that the Defendants knew of and disregarded an excessive risk to Plaintiffs health or safety, were aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and drew that inference. Rich v. Bruce. 129 F.3d 336, 338 (4th Cir. 1997) (citing Farmer, 511 U.S. 825 at 837).

         Plaintiffs amended complaint utterly fails to demonstrate that any of the defendants had knowledge that Bird and Crowe were dangerous prior to the July 7th assault. In fact, the evidence before the Court that is presented in the declarations that were filed by Defendants Watkins, Nicely, Beasley, and Moss, which are submitted under penalty of perjury, shows that they had no prior knowledge that either Bird or Crowe were dangerous or that Plaintiff was in any danger prior to the July 7th assault. In addition, the Court notes that after the assault, Bird and Crowe were transferred to the maximum security section of the CCDC, and Plaintiff was never housed with them again.

         In his one page response to Defendant's motion for summary judgment Plaintiff declares he will testify along with an unnamed witness about "genuine" facts although he elaborates no further. (Id., Doc. No. 45). After considering the Defendants' sworn declarations, and noting that Plaintiff has in no way refuted such declarations in his response, the Court finds that ...


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