United States District Court, E.D. North Carolina, Western Division
JOHNNIE D. ALLEN, Plaintiff,
REGGILLETTE ANDERSON, HUBERT PERSON, DR. GEORGE SOLOMON, CAPTAIN COBB, MR. SAULS, MR. HOWELL, MICHAEL MILLS, DARLYN WHITE, WALTER PENUEL, OFFICER GAY, ROBERT VANDIFORD, CAPTAIN R. WATSON, SARGENT NOBLE, ALVIN KELLER, and DANNY SANFRIT, Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on plaintiff's motion for
summary judgment (DE 119), defendants' motion for summary
judgment (DE 126), and plaintiff's motion for
representation at mediation (DE 140). The issues raised have
been fully briefed and are ripe for adjudication. For the
following reasons, this court grants defendants' motion
and denies plaintiff's motions.
OF THE CASE
September 30, 2013, plaintiff, a state inmate, filed this
civil rights action, pro s e, pursuant to 42 U.S.C.
§ 1983 against defendants named as Officer Anderson
(“Anderson”), Mr. Person (“Person”),
Dr. George Solomon (“Dr. Solomon”), Captain Cobb
(“Cobb”), Mr. Sauls (“Sauls”),
Officer Merritt (“Merritt”), Mr. Howell
(“Howell”), Mr. Mills (“Mills”),
Darlyn White (“White”), Officer Gay
(“Gay”), and Officer Penuel
(“Penuel”). In his original verified complaint,
plaintiff asserted that while incarcerated at Maury
Correctional Institution (“Maury C.I.”), he was
subjected to excessive force and retaliation on three
occasions in 2010. See Compl. (DE 1) ¶ V.
14, 2014, this court conducted a frivolity review pursuant to
28 U.S.C. § 1915. At that time, this court noted that
the alleged excessive force incidents occurred on March 31,
2010, April 6, 2010, and April 21, 2010. This court found
that plaintiff's action was time barred because it was
filed after the expiration of the three-year statute of
limitations. This court further found that to the extent
plaintiff had alleged prison officials failed to adequately
respond to his grievances or protect him from assault, those
claims were also time barred. This court noted that to the
extent plaintiff was attempting to allege a claim arising out
of his participation in the North Carolina Department of
Public Safety's (“NCDPS”) grievance
procedure, the claim was meritless because there is no
constitutional right to have available or to participate in a
grievance process. Ultimately, on frivolity review, this
court dismissed the action without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B) and directed the clerk to close
appealed this court's May 14, 2014, ruling. Plaintiff
also filed a motion to alter or amend this court's May
14, 2014, judgment pursuant to Federal Rule of Civil
Procedure 59(e), a motion to amend his complaint, and a
“motion for stay of dismissal.” This court
granted plaintiff's Rule 59(e) motion, and directed the
clerk to re-instate this action on June 26,
2014. This court also granted plaintiff's
motion to amend, and directed plaintiff to file his amended
complaint within 14 days.
16, 2014, plaintiff filed a verified amended complaint, in
which he alleges that he was subjected to excessive force on
four occasions: March 31, 2010, April 6, 2010, April 21,
2010, and June 4, 2010. (See Am. Compl. (DE 16)).
Plaintiff further alleges that the April 6, 2010, April 21,
2010, and June 4, 2010, incidents were a form of retaliation
against him for the March 31, 2010, incident. (Id.
September 18, 2014, this court conducted a frivolity review
of plaintiff's amended complaint. This court determined
that it did not appear from the face of the complaint that
plaintiff was entitled to no relief, and therefore, the
matter was allowed to proceed.
March 30, 2015, plaintiff filed a motion for entry of default
as to defendants Person, Merritt, Penuel, and Gay. On April
10, 2015, a notice was filed pursuant to Federal Rule of
Civil Procedure 25(a)(3) advising this court that defendant
Merritt died on May 28, 2011.
4, 2015, plaintiff filed a motion for entry of default
against defendant Lewis. On June 5, 2015, this court granted
in part and denied in part plaintiff's motion for entry
of default against defendants Person, Merritt, Penuel, and
Gay. Plaintiff's motion for entry of default against
defendant Lewis was denied as moot, and plaintiff was given
14 days to show cause why defendant Lewis should not be
dismissed. Plaintiff failed to show cause, and defendant
Lewis was terminated on September 8, 2015. On June 25, 2015,
the clerk entered default against defendants Gay and Person.
On August 31, 2015, former defendant Estate of Lancelot
Merritt (“Merritt Estate”) was substituted for
former defendant Merritt.
October 15, 2015, plaintiff filed a motion for summary
judgment. On November 9, 2015, defendants Anderson, Cobb,
Merritt Estate, Howell, Alvin Keller (“Keller”),
Mills, Noble, Penuel, Sanfrit, Sauls, Dr. Solomon, Vandiford,
R. Watson (“Watson”), and White filed a motion
for judgment on the pleadings. On the same day, defendant
Merritt Estate filed a motion to dismiss based on Federal
Rule of Civil Procedure 12(b)(6). On January 11, 2016,
plaintiff filed a motion for temporary restraining
order/motion for preliminary injunction.
January 21, 2016, this court denied plaintiff's motion
for a temporary restraining order/motion for preliminary
injunction. On June 23, 2016, this court denied as premature
plaintiff's motion for summary judgment and granted the
motion to dismiss filed by defendant Merritt Estate and
dismissed it from this action. The motion for judgment on the
pleadings was denied. On July 29, 2016, this court entered a
case management order.
August 10, 2016, plaintiff filed a motion for preclusion
order and motion for judgment as a matter of law. On
September 16, 2016, plaintiff filed a motion to stay. On
September 22, 2016, this court denied plaintiff's motion
for preclusion order, motion for judgment as a matter of law,
and motion to stay.
November 3, 2016, plaintiff filed the instant motion for
summary judgment. In support of his motion, plaintiff relies
upon his verified amended complaint (DE 16) and declaration
(DE 119- 1). On November 17, 2016, defendants filed a
response in opposition.
March 3, 2017, defendants filed their motion for summary
judgment. In support of their motion, defendants filed a
statement of material facts (DE 127) and an appendix to the
statement of material facts (DE 128), which consists of the
following: defendant Penuel's affidavit with exhibits (DE
128-1); defendant Anderson's affidavit with exhibits (DE
128-2); and Chineta Williams's (“Williams”)
affidavit with exhibits (DE 128-3), including video footage
of certain portions of the April 21, 2010 and June 4, 2010,
incidents. On April 4, 2017, plaintiff filed a response in
opposition to defendants' motion for summary judgment.
OF THE FACTS
as otherwise noted below, the undisputed facts are as
follows. On March 24, 2010, defendant Anderson “wrote
up” plaintiff for masturbating in front of her and a
female nurse. (A p p . Ex. 2, Roundtree Aff.
¶¶ 7, 9, Ex. A). Defendant Anderson initiated the
paperwork for a disciplinary infraction. (Id.
March 31, 2010 incident
defendant Anderson arrived at work on March 31, 2010,
plaintiff complained to her about the disciplinary infraction
he received for masturbating in front of her on March 24,
2010. (Id. ¶ 12). Plaintiff
informed defendant Anderson that his behavior was directed
toward the female nurse, not her. (Id.) Defendant
Anderson advised plaintiff that he was properly written up
for the infraction, regardless of which female he was
directing his conduct. (Id.)
that day, at approximately 10:30 a.m., defendant Anderson was
serving lunch trays to the housing block of the Red Unit
Segregation B Block, which was where plaintiff was being
housed. (Id. ¶ 13). On the segregation block,
officers serve inmates their meals on a tray through an
opening in the cell door referred to as a “trap
door.” (Id.) When defendant Anderson got to
plaintiff, he accepted his lunch tray without incident.
Anderson called plaintiff a
“snitch.” (Am. Compl. (DE 16) at 3, 6; Pl.'s
Decl. (DE 119-1) at 1). When defendant Anderson later went to
plaintiff's cell door to retrieve his food tray, she
unlocked the trap door, and plaintiff immediately stuck his
arm out. (App. Ex. 2, Roundtree Aff. ¶ 14). Plaintiff
had a milk carton in his hand, and he threw the contents of
the carton on defendant Anderson. (App. Ex. 2, Roundtree Aff.
¶ 14; App. Ex. 3, Williams Aff. Ex. C; Am. Compl. (DE
16) at 3). Defendant Anderson was covered, from her head to
her toes, in what she thought was spoiled milk and
vegetables. (App. Ex. 2, Roundtree Aff. ¶ 14). Because
defendant Anderson called plaintiff a “snitch, ”
plaintiff felt he was left with no alternative but to throw
milk on her for placing his life and well-being in danger.
(Am. Compl. (DE 16) at 6). Despite orders to stop, plaintiff
continued to swing his arm and the milk carton towards
defendant Anderson. (App. Ex. 2 Roundtree Aff. ¶ 14).
Anderson drew her pepper spray. (Id.) Plaintiff then
reached back inside his cell for another cup, and he
proceeded to throw the contents of a second cup on defendant
Anderson. (Id.) According to plaintiff, the whole
incident could have been avoided, but plaintiff was
essentially “pushed into a physical conflict.”
(Am. Compl. (DE 16) at 6). In particular, plaintiff believes
the failure to respond to being called a “snitch”
in prison could put an inmate at risk of being injured,
raped, or even killed. (Id. at 7).
the second assault, defendant Anderson sprayed one two-second
burst of pepper spray into plaintiff's cell to stop the
assault. (App. Ex. 2, Roundtree Aff. ¶ 14; Am. Compl.
(DE 16) at 3). Plaintiff put his arm back in the trap door,
defendant Anderson locked the door, and she reported the
incident to her supervisor, Sergeant Author. (App. Ex.
Roundtree Aff. ¶ 14). Plaintiff was not injured. (App.
Ex. 3, Williams Aff. ¶ 20). In fact, plaintiff joked
with the nursing staff that defendant Anderson had
“missed” him with the pepper spray.
Anderson was sent for an outside medical evaluation because
it was feared the assault had exposed her to bodily fluids.
(Id. ¶¶ 15-16). Following the incident
with defendant Anderson, plaintiff feared for his safety and
requested a transfer to another prison. (Am. Compl. (DE 16)
the early part of April 2010, plaintiff complained about the
March 31, 2010, incident, and asked Williams to investigate
the matter. (App. Ex. 3, Williams Aff. ¶¶
12-13). Initially, Williams interviewed defendant Anderson,
took a statement, and determined that although defendant
Anderson had reported the incident, for whatever reason, no
investigation was initiated. (Id. ¶ 13).
Williams also interviewed Officer Dixon, who corroborated
defendant Anderson's statement regarding the incident and
also indicated that he saw plaintiff throw liquids on
defendant Anderson. (Id. ¶ 15).
officials concluded that plaintiff's claims about
defendant Anderson retaliating against him were meritless
because he had been properly charged with the infraction.
(Id. ¶ 18). Prison officials determined that
there was no surveillance video of the March 24, 2010,
incident, due to the position of the surveillance cameras.
(Id. ¶ 21). Prison officials found that
defendant Anderson responded appropriately to plaintiff
throwing liquids on her, and the use of the pepper spray was
“justified” to stop the assault. (Id.
was charged with a disciplinary infraction related to the
March 24, 2010, incident, and he was criminally prosecuted
for the attack. (App. Ex. 2, Roundtree Aff. ¶¶
17-18). Plaintiff was also “unlawfully” moved to
Maximum Control (“M-Con”), which is a
“hostile and dangerous place.” (Pl.'s Decl.
(DE 119-1) at 2; App. Ex. 2, Roundtree Aff. ¶ 21).
Defendant Anderson saw plaintiff on one occasion after the
incident, and he laughed and called her a “dumb butt
bitch.” (App. Ex. 2, Roundtree Aff. ¶ 22).
April 10, 2010, Sergeant Washington informed plaintiff that
she was doing an incident report for excessive force from the
March 31, 2010, incident. (Pl.'s Decl (DE 119-1) at 3).
Sergeant Washington came back on April 11, 2010, and advised
plaintiff that she was the investigator for the March 31,
2010, incident, and the statement plaintiff gave the day
before was done as a favor to Williams. (Id.)
April 17, 2010, Sergeant Spruill called plaintiff out, and
plaintiff sat for at least an hour in the hall's holding
cell. (Id.) At around 11:30 a.m. that day, Sergeant
Spruill showed up and told plaintiff that he was the
investigator for the March 31, 2010, incident. (Id.)
Sergeant Spruill stated that he knew nothing about Sergeant
Washington being the investigator, and he had no knowledge of
plaintiff's original statements. (Id.) Sergeant
Spruill refused to provide plaintiff with additional
statement forms. (Id.)
19, 2010, plaintiff was taken to a disciplinary hearing
regarding the March 31, 2010, incident. (Id. at 7).
During the middle of the hearing, former defendant Merritt
barged into the room and stood over plaintiff in a
threatening manner until plaintiff started “talking
junk.” (Id.) Plaintiff was agitated, and he
was escorted out. (Id.) Plaintiff was ultimately
found guilty of throwing fluid on an officer. (Id.)
Plaintiff was also blamed for the interruption during the
disciplinary hearing, as it was noted that he was removed
from the hearing. (Id.)
April 6, 2010 incident
April 6, 2010, plaintiff's property was packed for no
reason while he was at a sick call appointment. (Id.
at 2). Plaintiff was told that his property would be held for
72 hours. (Id.) Plaintiff raised his voice “in
protest” to this news about his property, and he was
slammed to the ground, kneed in the back, and choked, which
all happened while he was fully restrained. (Pl.'s
Decl. (DE 119-1) at 2; Am. Compl. (DE 16) at 3). Then,
plaintiff was lifted off the ground by at least five
additional officers who responded to the incident. (Pl.'s
Decl. (DE 119-1) at 2). This incident was an act of
retaliation against plaintiff for the March 31, 2010,
incident between him and defendant Anderson. (Am. Compl. (DE
16) at 7).
was taken before P.A. Jerry Legget in medical to be evaluated
following the use of force. (Pl.'s Decl. (DE 119-1) at 2;
App. Ex. 1, Penuel Aff. ¶ 10). Plaintiff was found to
have sustained no injuries, and he was returned to his cell
without further incident. (App. Ex. 1, Penuel Aff. ¶ 10)
April 6, 2010, incident went unreported for 15 days, until
April 23, 2010, when plaintiff reported it to defendant Mills
of the M-Con Unit. (Pl.'s Decl. (DE 119-1) at 3).
Defendant Mills advised him that there would be an
investigation. (Id., )
submitted grievances, but he never heard anything.
(Id. at 6). Then, on April 20, 2010, plaintiff was
served with an infraction form. (Id. at 4). The next
day, plaintiff went to a disciplinary hearing. (Id.)
April 24, 2010, Sergeant Pelletier informed plaintiff that
she had been tasked with doing an investigation of the April
6, 2010, incident. (Id. at 5). Sergeant Pelletier
prepared an incident report regarding the events. (App. Ex. 3
Williams Aff. ¶ 25, Ex. D).
ultimately determined that the evidence did not support
plaintiff's allegations that he was choked by defendant
Penuel and held down by five officers. (Id.) The
April 6, 2010 use of force was reviewed by facility