United States District Court, M.D. North Carolina
ORDER. MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
WEBSTER, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court upon Defendants Steven L.
Hopkins and John L. Kempf s motion for summary judgment.
(Docket Entry 30.) Also before the Court is Plaintiff Quentin
Mathis's letter document, which in part, appears to be a
motion for an extension of time to obtain discovery. (Docket
Entry 43.) All matters are ripe for disposition. For the
following reasons, the Court will deny Plaintiffs motion for
an extension of time to obtain discovery, and recommend that
Defendants' motion for summary judgment be denied.
March 11, 2015, Plaintiff, a pro se prisoner, filed
a Complaint asserting that Defendants used excessive force upon
Plaintiff after conducting a routine and scheduled search at
the Rowan County Detention Center. (See generally
Compl., Docket Entry 2.) Defendants Hopkins and Kempf
thereafter filed an Answer (Docket Entry 16) and the Court
entered a discovery order in this matter. (Docket Entry 18.)
The completion date of all discovery was October 10, 2016.
(Id.) Plaintiff subsequently filed an Amended
Complaint which was stricken for failure to comply with the
Local Rules and Federal Rules of Civil Procedure. (Text Order
dated 9/12/2016; see also Docket Entry 21.) In light
of Plaintiff's pro se prisoner status, the Court
did allow Plaintiff additional time to file a proper motion
for leave to amend his Complaint. (Text Order dated
9/12/2016.) Plaintiff filed subsequent motions for leave to
amend, and for an order compelling discovery. (Docket Entries
23, 24.) On November 8, 2016, Defendants Hopkins and Kempf
filed their motion for summary judgment. (Docket Entry 30.)
Thereafter the Court ruled upon Plaintiffs motions. (Text
Order dated 12/21/2016.) In particular, the Court ordered
that Defendants respond to Plaintiffs request for certain
documentation and the video of the alleged assault.
(Id.) As to interrogatory requests, the Court
further instructed Plaintiff to submit to Defendants "a
one (1) page document clarifying exact interrogatory
questions Plaintiff seeks to ask Defendants."
(Id.) It further stated that "Plaintiff shall
have until Wednesday, January 11, 2017 to submit those
January 26, 2017, Defendants filed a status report indicating
their compliance with the Court's December 2016 Order.
(Docket Entry 38.) Defendants also informed the Court that
they never received a clarification of the interrogatory
questions from Plaintiff. (Id.) Shortly thereafter,
Defendants received Plaintiffs interrogatory requests, and
filed objections for untimeliness and Plaintiffs failure to
comply with the Court's instructions. (Docket Entry 39.)
Plaintiff filed a response indicating that he filed the
interrogatories with the Court before the January 11, 2017
deadline. (Docket Entry 40.) However, no such record is
apparent from the Court's record. Defendants thereafter
reasserted their motion for summary judgment (Docket Entry
42) and Plaintiff filed a response seeking, in part,
additional time to obtain discovery responses. (Docket Entry
43.) The Court will deny Plaintiffs request. Plaintiff failed
to comply with the Court's previous Order in that he
failed to timely submit to Defendants "a one (1) page
document clarifying exact interrogatory questions Plaintiff
seeks to ask Defendants." (Text Order dated 12/21/2016.)
Moreover, Plaintiffs lack of compliance is prejudicial to
Defendants and also hinders the Court in its efforts to
dispose of this matter in the most efficient manner. As such,
in making the recommendation herein upon Defendants'
motion for summary judgment, the Court will consider evidence
now before the Court.
Complaint, Plaintiff asserts that on December 29, 2013,
Defendant Kempf entered the detention center dorm at
approximately 9:00am to conduct a routine search. (See
generally Compl, Docket Entry 2 at 5.) After all
detainees were asked to move to the front of the dorm,
Defendant Kempf "singled out" Plaintiff and asked
him what was in his pocket. (Id.) Plaintiff
responded, "My radio, why what's going on?"
(Id.) Defendant Kempf then instructed Plaintiff to
place his radio on his bed and to move back to the front of
the dorm. (Id.) Defendant Kempf told all detainees
that no personal items could be taken from the dorm.
(Id.) Plaintiff then asked if the detainees were
leaving the dorm and Defendant Kempf allegedly replied,
"Shut up! And follow the order!" (Id.)
Plaintiff proceeded to remove his shower shoes and put on his
tennis shoes, at which point he was approached by Defendant
Kempf who yelled, "Take them off!" (Id.)
Plaintiff stated that no policies prohibited him from wearing
his shoes, and Defendant Kempf responded, "Ok, get in
alleges that the detainees were then taken to the storage
room behind the control room for approximately thirty minutes
while the dorm search was executed. (Id.) Defendant
Kempf returned to the storage room and told Plaintiff and
another inmate (Gibson) to step into the hallway.
(Id.) Plaintiff followed behind inmate Gibson and
stepped into the hallway where another officer, Kevin M.
Holshouser ("Holshouser"), was also standing.
(Id.) Defendant Kempf then informed Plaintiff that
he was being moved to another unit and that he would find out
why he was being moved "once he got there."
(Id.) Plaintiff then asked Officer Holshouser what
was going on and Plaintiff was told that he was being
"locked down for contraband." (Id.)
Plaintiff asserts that without warning, Defendant Kempf then
shoved Plaintiff, and "grabbed [Plaintiff] by the arm
and throat area, hitting [Plaintiff] in the jaw [and] face
area." (Id. at 6.) Plaintiff tried to defend
himself. (Id.) Defendant Kempf tackled Plaintiff to
the floor, "punched [Plaintiff] in the face and rib
area, [and] squeezed [Plaintiff] in his lower private parts
causing an instant pain." (Id.)
further alleges that he laid "flat on the ground with
his hands placed on his head, while asking officers to stop
the assault by [Defendant Kempf]." (Id.)
Defendant Hopkins "started shocking [Plaintiff]
repeatedly with the Taser gun while being placed in
handcuffs." (Id.) Plaintiff asserts that
Defendant Hopkins shocked Plaintiff three more times with the
Taser gun while Plaintiff was in handcuffs. (Id.)
Defendant Kempf also "placed his knee in [Plaintiffs]
head applying pressure with his entire body weight pressing
down on the temple area of [Plaintiffs] head causing more
pain." (Id.) According to Plaintiff, another
officer arrived and told Defendant Kempf to get off
Plaintiff. (Id.) Defendant Kempf complied, then
started pulling Plaintiffs hair. (Id.) Defendant
Kempf received further orders to move away from Plaintiff
before he ceased use of excessive force. (Id.)
thereafter filed a "force report" and requested to
file a complaint against Defendants Kempf and Hopkins.
(Id.) Plaintiff states that the grievance was not
located in his Inmate File when he asked for a copy of it.
(Id.) On January 3, 2014, Plaintiff requested
witnesses for his disciplinary hearing surrounding the
incident. (Id. at 7.) Plaintiffs hearing was held
several days later with two of the three witnesses which
Plaintiff requested. (Id.) Plaintiff indicated that
he wanted all of his witnesses present. (Id.)
Plaintiff thereafter filed a grievance with regard to the
hearing. (Id.) He appealed the initial response for
his grievance, but did not receive any further response.
(Id.) Also, Plaintiff was asked to sign a properly
sheet, but refused because he stated that it was inaccurate.
(Id.) Once Plaintiff returned from the segregation
unit, Plaintiff noticed some of his items missing.
(Id.) Plaintiff also wrote a grievance about his
missing properly and alleges that all of his items were never
recovered. (Id.) Lastly, Plaintiff complained of his
inability to send or receive mail while in the segregation
unit, which is the policy at the Rowan County Detention
Center. (Id.) Plaintiff seeks a declaration that his
constitutional rights have been violated, an injunction
against Defendant J.A. Milem, and compensatory and punitive
damages against all Defendants. (Id. at 4.)
support of their motion for summary judgment, Defendants have
submitted their affidavits along with the affidavits and
declarations of Rowan County Detention Officers Holshouser
and Mandy D. Tew, and Jail Nurse Tammy Yon. (John L. Kempf
Aff, Docket Entry 31-2; Steven L. Hopkins Aff, Docket Entry
31-3; Kevin M. Holshouser Aff, Docket Entry 31-4; Mandy D.
Tew Decl., Docket Entry 31-5; Tammy Yon Aff, Docket Entry
31-6.) Beyond the fact that the officers were conducting a
routine search of the dorm on December 29, 2013, the parties
differ in opinion as to what happened during the incident.
Defendants Kempf and Hopkins, and Officer Holshouser all
assisted in conducting the search of the dorm. (Kempf Aff.
¶ 3; Hopkins Aff. ¶ 3; Holshouser Aff. ¶ 3.)
Defendant Kempf states that Plaintiff "became verbally
argumentative with [officers], telling [them] that [their]
inspection was 'bullshit' and that [they] had no
right to wake the prisoners up to perform the
inspection." (Kempf Aff. ¶ 3.) The prisoners,
including Plaintiff, were removed from the area and placed in
the Day Room behind the Control Room until the search was
complete. (Kempf Aff. ¶ 3; Holshouser Aff. ¶ 3;
Hopkins Aff. ¶ 3.) During the course of the search,
Plaintiff and another prisoner were both found to be in
possession of contraband. (Kempf Aff. ¶ 3; Holshouser
Aff ¶ 3; Hopkins Aff. ¶ 3.) Plaintiff was in
possession of a salt packet and a quarter. (Kempf Aff. ¶
and the other prisoner were removed from the secured room and
informed by Defendant Kempf that they were being moved to Pod
2 (administrative segregation). (Kempf Aff. ¶ 4;
Holshouser Aff. ¶ 4; Hopkins Aff. ¶ 4.) At this
point, Officer Tew was also assisting the other officers, and
witnessed Defendant Kempf tell the prisoners that they were
being moved to another unit. (Tew Decl. ¶ 3.) Plaintiff
refused to move and asked why he was being locked down.
(Kempf Aff. ¶ 4; Holshouser Aff. ¶ 4; Hopkins Aff.
¶ 4, Tew Decl. ¶ 3.) Defendant Kempf responded that
he would tell Plaintiff after he arrived at Pod 2. (Kempf
Aff. ¶ 4; Holshouser Aff. ¶ 4; Hopkins Aff. ¶
4, Tew Decl. ¶ 3.) Plaintiff continued to refuse
Defendant Kempf s orders and Officer Holshouser then told
Plaintiff that he was being moved for possession of
contraband. (Holshouser Aff. ¶ 4; Hopkins Aff. ¶
4.) Plaintiff continued to refuse the officers' commands,
and Defendant Kempf then "took [Plaintiff] by the arm to
guide him to Pod 2 and ordered him to move along."
(Kempf Aff. ¶ 4; see also Holshouser Aff.
¶ 4; Hopkins Aff. ¶ 4, Tew Decl. ¶ 3.)
Defendant Kempf asserts that he then reached for Plaintiffs
shoulder, "but [Planitiff] was able to move away."
(Kempf Aff. ¶ 4.) Defendant Kempf reached towards his
belt to retrieve his Taser, but was punched in the left side
of his face by Plaintiff. (Kempf Aff. ¶ 4.) The other
officers also observed Plaintiff pulling away from Defendant
Kempf and suddenly punching him in the face. (Holshouser Aff.
¶ 4; Hopkins Aff. ¶ 4, Tew Decl. ¶ 4.)
then pushed Defendant Kempf backwards, knocking Defendant
Hopkins against the wall. (Kempf Aff. ¶ 4; Hopkins Aff.
¶ 4; Tew Decl. ¶ 4.) Officer Holshouser then
grabbed Plaintiff around his waist, placed his right foot
behind Plaintiffs foot, and threw Plaintiff over his right
shoulder and onto the floor. (Holshouser Aff. ¶ 5; Kempf
Aff, ¶ 5; Hopkins Aff. ¶ 5; Tew Decl. ¶ 4.)
Officer Holshouser grabbed Plaintiffs arm and attempted to
pull it behind his back so that the officers could handcuff
him. (Holshouser Aff. ¶ 5.) However, Officer Holshouser
was unable to gain control of Plaintiffs arm. (Id.)
During this time, Defendant Kempf was underneath Plaintiff on
the floor, and Defendant Kempf repeatedly ordered Plaintiff
to stop biting him. (Kempf Aff. ¶ 6; Holshouser Aff.
¶ 5.) As Defendant Kempf freed his right hand (both
hands were pinned between his body and Plaintiffs body),
Plaintiff continued to bite Defendant Kempf. (Kempf Aff.
¶ 6.) Defendant Kempf then used his right arm to push
Plaintiffs head back, and Plaintiff bit Defendant Kempf
again. (Id.) Defendant Kempf admits that he grabbed
Plaintiff by the hair to stop him from biting Defendant Kempf
and spitting at him. (Id. ¶ 7.)
during this time, Officer Holshouser yelled for Defendant
Hopkins to use his Taser in order to gain control of
Plaintiff. (Holshouser Aff. ¶ 6.) Defendant Hopkins
deployed his Taser in drive-stun mode (direct contact for
pain compliance only) to Plaintiffs legs. (Hopkins Aff.
¶ 5; Holshouser Aff. ¶ 6; Tew Decl. ¶ 5.)
Defendant Hopkins ordered Plaintiff to place his hands behind
his back, and Plaintiff begin to swipe at the Taser and kick
at Defendant Hopkins. (Hopkins Aff. ¶ 5.) Defendant
Hopkins applied several more drive stuns to Plaintiff, and
the officers were ultimately able to gain control of
Plaintiff and secure his wrists with handcuffs. (Holshouser