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Allen v. Anderson

United States District Court, E.D. North Carolina, Western Division

September 18, 2017

JOHNNIE D. ALLEN, Plaintiff,
v.
REGGILLETTE ANDERSON, [1]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.[2]

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This 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.

         STATEMENT OF THE CASE

         On 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.

         On May 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 the case.

         Plaintiff 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.[3] This court also granted plaintiff's motion to amend, and directed plaintiff to file his amended complaint within 14 days.

         On July 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. at 7).

         On 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.

         On 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.

         On May 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.

         On 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).[4] On January 11, 2016, plaintiff filed a motion for temporary restraining order/motion for preliminary injunction.

         On 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.

         On 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.

         On 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.

         On 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.

         STATEMENT OF THE FACTS

         Except 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.[5] (A p p . Ex. 2, Roundtree Aff. ¶¶ 7, 9, Ex. A). Defendant Anderson initiated the paperwork for a disciplinary infraction.[6] (Id. ¶ 6).

         A. March 31, 2010 incident

         When 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.[7] (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.)

         Later 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. (Id.)

         Defendant Anderson called plaintiff a “snitch.”[8] (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).

         Defendant 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).

         Following 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. (Id.)

         Defendant 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) at 3).

         During the early part of April 2010, plaintiff complained about the March 31, 2010, incident, and asked Williams to investigate the matter.[9] (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).

         Prison 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. ¶ 19).

         Plaintiff 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).

         On 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.)

         On 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.)

         On May 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.)

         B. April 6, 2010 incident

         On 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.[10] (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).

         Plaintiff 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)

         The 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., )

         Plaintiff 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.)

         On 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).

         It was 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 ...


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