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Neal v. Williams

United States District Court, M.D. North Carolina

May 3, 2017

ROBERT NEAL, JR., Plaintiff,



         This matter is before the Court on Defendant Officer Berkley Williams' motion for summary judgment. (Docket Entry 19.) Plaintiff Robert Neal, Jr. (hereinafter "Plaintiff or "Mr. Neal") has not responded to the motion. The matter is ripe for disposition. For the reasons stated herein, the Court recommends that Defendant's motion for summary judgment be granted.

         I. Background

         Plaintiff filed this action against Defendant on February 2, 2015, claiming use of excessive force during Plaintiffs encounter with Defendant in October 2013. (See generally Complaint, Docket Entry 2.) Plaintiff alleges that on October 3, 2013, he was stopped by Defendant, a Reidsville police officer, while operating a dirt bike on a public roadway. (Id. at 3.) Next, Plaintiff asserts that he was placed under arrest and taken to the police station by Defendant. (Id.) Once reaching the police station, Plaintiff and Defendant had "disagreeable words." (Id.) Defendant allegedly then threw Plaintiff on to a bench inside a holding cell, causing injury to Plaintiffs knees and arms. (Id.) Plaintiff was transported to a hospital where he continued to argue with Defendant. (Id.) Plaintiff alleges that Defendant took off the handcuffs in order to provoke Plaintiff into striking Defendant. (Id.) The arguing continued until another officer stepped between Plaintiff and Defendant, and restrained Defendant. (Id.) The next day a lieutenant officer came to Plaintiffs residence to take pictures of his injuries, and forced Plaintiff to sign a document stating that no one in the sheriffs department caused his injuries. (Id.)

         Plaintiff has also attached to his complaint a letter from the Reidsville Police Department. (See Letter, Docket Entry 2 at 5.) This appears to be the result of an internal investigation conducted surrounding the alleged events during the arrest. Police Chief Charlie Dennis indicated that "there [was] no evidence to substantiate [Plaintiffs] allegations that Officer Williams used excessive force while [Plaintiff was] being processed. (Id.) The letter further stated that Defendant Williams did make "inappropriate comments and removed the handcuffs from [Plaintiffs] wrist." (Id.) According to Chief Dennis, those violations have been handled. (Id.)

         Defendants' summary judgment materials include the affidavit of Defendant Williams and Reidsville Police Officer Cody Westmoreland. (Williams Aff., Docket Entry 22; Westmoreland Aff., Docket Entry 21.) Officer Westmoreland reported that while patrolling, he observed Plaintiff driving a dirt bike on a public roadway without a helmet. (Westmoreland Aff. ¶ 1.) Officer Westmoreland then executed a motor vehicle stop on Plaintiff and smelled a strong odor of alcohol. (Id.) Defendant was called to perform a horizontal gaze nystagmus (HGN) test, but upon his arrival, Plaintiff was not cooperating. (Id. ¶ 2; see also Williams Aff. ¶ 2.) Upon administering the HGN test, Plaintiff was unable to follow the tip of Defendant's pen with his eyes. (Williams Aff. ¶ 2.) Additionally, Plaintiff could not, or refused, to blow into the Alco censor. (Westmoreland Aff. ¶ 2.) Eventually Plaintiff cooperated with the Alco censor, and his readings were a .19 and .18, which were above the legal limit in North Carolina of .08. (Williams Aff. ¶2.)

         Plaintiff was subsequendy arrested and transported to Reidsville Police Department. (Westmoreland Aff. ¶ 2.) Officer Westmoreland stated that once Plaintiff was placed in the holding cell, he became "verbally combative" and began kicking at the bars of the holding cell in the police department. (Id.) In fear that Plaintiff would injure himself or damage the holding cell, Plaintiff was instructed to stop his conduct. (Id. ¶ 3.) Upon Plaintiffs refusal to stop kicking the holding cell, officers decided to place leg irons on Plaintiff. (Westmoreland Aff. ¶ 3; Williams Aff. ¶ 4.) Defendant ordered that Plaintiff kneel on a wooden bench to place the leg restraints on Plaintiff and he refused. (Westmoreland Aff. ¶ 3.) Defendant then stood Plaintiff up facing the wooden bench and Defendant pushed against the back of Plaintiffs knees to gain compliance. (Williams Aff. ¶ 4.) Defendant and Officer Westmoreland then placed the leg irons on Plaintiff in order to restrain him. (Id.) Defendant asserts that he used no other force to restrain Plaintiff, and did not hit or strike Plaintiff in any manner. (Williams Aff. ¶ 5.) Officer Westmoreland confers that at no point did he witness Defendant strike Plaintiff. (Westmoreland Aff. ¶ 4, )

         Subsequently, a search warrant was obtained in order to draw Plaintiffs blood at Annie Penn Hospital. (Williams Aff. ¶ 6.) Upon arriving at the hospital, Plaintiff continued to be verbally combative, but no physical force was used. (Id. ¶¶ 6-7.) Plaintiff was later convicted of driving while intoxicated ("DWI") and is now serving his sentence in the North Carolina Department of Corrections. (Westmoreland Aff. 7.)

         II. Standard of Review

         Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entided to judgment as a matter of law. Fed.R.Civ.P. 56(c); Zahodnkk v. Int'l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Or. 1997). The party seeking summary judgment bears the initial burden of coming forward and demonstrating the absence of a genuine issue of material fact. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex v. Catrett, 477 U.S. 317, 323 (1986)). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a fact finder to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d 810, 817 (4th Cir. 1995). Thus, the moving party can bear his burden either by presenting affirmative evidence or by demonstrating that the non-moving party's evidence is insufficient to establish his claim. Celotex, 477 U.S. at 331 (Brennan, J., dissenting). When making the summary judgment determination, the court must view the evidence, and all justifiable inferences from the evidence, in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997).

         III. Analysis

         A. Excessive Force

         Defendant moves for summary judgment as to Plaintiffs § 1983 claim for use of excessive force. (Def.'s Br., Docket Entry 20.) Plaintiff has not responded to the motion for summary judgment. Defendant argues that summary judgment should be granted in his favor because: (1) there are no genuine issues of material fact; (2) Defendant is entided to qualified immunity; and (3) Plaintiff has not presented a claim or evidence of municipal liability. (Id.)

         The Court first notes that because Plaintiff failed to file a response to Defendants' summary judgment motion within the time required by this Court's Local Rules, "the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." M.D. N.C. R. 7.3(k); see also Kinetic Concepts, Inc. v. ConvaTec Inc., No. 1:08CV918, 2010 WL 1667285, at *6-8 (M.D. N.C. Apr. 23, 2010) (unpublished) (analyzing this Court's Local Rules 7.3(f), 7.2(a), and 7.3(k) and discussing authority supporting ...

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