United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter comes before the court on the parties'
cross-motions for motion for summary judgment (DE 31, 37)
pursuant to Federal Rule of Civil Procedure 56(a). The issues
raised have been fully briefed and are ripe for adjudication.
For the following reasons, the court grants defendants'
motion for summary judgment and denies plaintiff's motion
for summary judgment.
OF THE CASE
January 12, 2015, plaintiff, a state inmate, filed this civil
rights action pro se pursuant to 42 U.S.C. §
1983 against defendants Assistant Unit Manager Calvin Daniels
(“Daniels”), Jason Evans (“Evans”),
and James Dunlow (“Dunlow”). Plaintiff alleged
that defendants violated his rights pursuant to the Eighth
Amendment to the United States Constitution when they failed
to protect plaintiff from the possibility of inmate-on-inmate
violence, wrongfully disciplined him, and then demoted him to
intensive control (“ICON”) custody status.
Plaintiff also alleged that defendants violated his rights
pursuant to the Due Process Clause of the Fourteenth
Amendment to the United States Constitution when they placed
him on ICON custody status. Plaintiff subsequently filed a
motion to appoint counsel. On June 22, 2015, the court denied
plaintiff's motion to appoint counsel, but allowed
plaintiff to proceed with this action. Plaintiff then filed
second and third motions to appoint counsel, which the court
28, 2016, defendants filed the instant motion for summary
judgment arguing that plaintiff's action against
defendant Dunlow should be dismissed without prejudice for
failure to exhaust administrative remedies prior to filing
this action. Defendants argue that the remainder of the
action should be dismissed because plaintiff is unable to
establish a constitutional violation. Alternatively,
defendants assert the affirmative defense of qualified
immunity. As part of their motion, defendants filed a
statement of material facts as well as an appendix which
consisted of defendants' respective responses to
plaintiff's first set of interrogatories and
defendants' responses to plaintiff's request for
production of documents. The motion was fully briefed. On
July 22, 2016, plaintiff filed the instant cross-motion for
summary judgment. Plaintiff additionally filed a personal
affidavit and statement of material facts. The motion was
fully briefed. On the same date, plaintiff filed a fourth
motion to appoint counsel, which the court denied.
undisputed facts may be summarized as follows. On November
11, 2014, plaintiff, an inmate housed in regular population
on the green unit at Bertie Correctional Institution
(“Bertie”), submitted a request for protective
housing. (DE 33, Ex. 4, p. 6). Plaintiff provided the
following statement in support of his request: “During
the last few months I have been having problems in the cell
block with inmates extorting money from me. I just decided
that I did not want to keep giving my money away to gang
members.” (Id., Ex. 4, pp. 7-8). In response
to his request, plaintiff immediately was transferred to
administrative segregation on the red unit so that staff
could complete a control investigation into plaintiff's
allegations that he was in danger if he remained in regular
population. (Compl. ¶ IV; DE 33, Ex. 1, p. 3; Ex. 4, p.
two weeks later and after further investigation, Bertie staff
determined that there was no evidence to support a finding
that plaintiff required protective housing because plaintiff
“did not give any names up who he said was extorting
money from him.” (DE 33 Ex. 4, p. 66). The investigation
further revealed that plaintiff had made a similar
unsubstantiated request for protective custody at Hyde
Correctional Institution (“Hyde”) in 2013.
(Id.) At the conclusion of the investigation,
defendant Daniels approached plaintiff and asked plaintiff if
he intended to return to regular population. (Id.)
Plaintiff responded that he did not intend to return to
regular population. (Id.) Daniels then
“authorized” defendant Evans to give plaintiff a
direct order to return to regular population on November 24,
2014. (Id.) Plaintiff refused defendant Evans'
order, and was charged with a C-03 disciplinary offense for
refusing to obey a direct order. (DE 33, Ex. 4, p. 14). The
statement plaintiff provided in the course of the
disciplinary investigation provides in pertinent part:
[I] felt that my life was in danger and that I would like to
be placed on protective custody. For about a few months I
have been having problems with inmates in my cell-block that
I suspected were gang-members that have been extorting
canteen items from me. When I would go outside to the
recreation yard, hygiene and canteen items would be stolen
from my room. I was told that it was a form of rent. I
complied due to eyewitnessing numerous instances of inmates
getting physically abused by a group of inmates in which I
did not want any retaliation. I feel that there is very poor
security here a[t] Bertie. So, I decided to place myself on
protective custody. . . . I was not spoken to by any staff
here at Bertie concerning my custody status until I was given
a direct order to return back to the regular population by 
Evans. I was not given the proper document to sign that would
release me back into the regular population if I felt that I
was no longer in danger.
(Id. pp. 8-10). Plaintiff subsequently pleaded
guilty to the C-03 offense and was sentenced to the
following: 15 days segregation; 10 days loss of good-time
credit; 20 hours of extra duty; 30 days suspension of
privileges; and one month of limited draw. (Id. p.
December 3, 2014, defendant Dunlow gave plaintiff a second
direct order to leave protective custody and to return to
regular population. (Compl. ¶ IV). Plaintiff again
refused, and was charged with a second C-03 disciplinary
offense for refusing to obey a direct order. ((DE 33), Ex. 4,
p. 26). Plaintiff declined to provide a written statement
after receiving the second C-03 disciplinary charge.
(Id.) On December 10, 2014, the disciplinary hearing
officer (“DHO”) conducted a hearing on
plaintiff's C-03 charge and provided the following
Inmate Moore states that he was never given a direct order,
but was ask if he wanted to return to regular population.
Inmate Moore writes that Mr. Dunlow approached his cell and
ask if he was going to regular population and he refused,
therefore he did not refuse a direct order. In the
[‘]for accused inmate use only['] section, inmate
Moore checked [‘]no['] for written statements and
did not check [‘]yes['] or [‘]no['] for
Inmate Moore checked [‘]yes['] for physical
evidence and stated during the hearing that he wanted the
facility control investigation reviewed during the hearin[g].
The DHO denied the request due to relevance and inmate Moore
stating during the hearing that he did not provide any
information for the facility to investigate.
Inmate Moore checked [‘]yes['] for staff
assistance. Based on the reporting party's statement and
the investigating officer's report, inmate Moore is found
guilty of the C03 offense.
(Id. p. 30). As a result of the second C-03
disciplinary conviction, the DHO sentenced plaintiff to the
following: 30 days of segregation; 20 days loss of good-time
credit; 30 hours of extra duty; 60 days of suspension of