United States District Court, E.D. North Carolina, Western Division
MARION L. SHERROD, Plaintiff,
COLBERT L. RESPASS, SEAN DILLARD, CAPT. OLIVER, and MARCEL SLEDGE, Defendants.
W. FLANAGAN United States District Judge
matter is before the court on plaintiff's motion for
summary judgment (DE 74) and defendants' motion for
summary judgment (DE 84). The issues raised have been fully
briefed and are ripe for adjudication. For the following
reasons, this court grants defendants' motion and denies
OF THE CASE
September 25, 2014, plaintiff, a state inmate, filed this
civil rights action, pro s e, pursuant to 42 U.S.C.
§ 1983. Plaintiff initially alleged that defendants
George T. Solomon (“Solomon”), Nurse Patterson
(“Patterson”), Capt. Oliver
(“Oliver”), Felix Taylor (“Taylor”),
Colbert L. Respass (“Respass”), Sean Dillard
(“Dillard”), and Rahim Akbar
(“Akbar”) violated his Eighth and Fourteenth
Amendment rights. See Compl. (DE 1). On June 22,
2015, this court conducted a frivolity review pursuant to 28
U.S.C. § 1915 and determined that it did not clearly
appear from the face of plaintiff's complaint that he was
not entitled to relief. Therefore, the matter was allowed to
29, 2015, plaintiff file a motion to transfer this case to
the Western District of North Carolina, which was denied. On
October 19, 2015, defendants Dillard, Oliver, Respass,
Solomon and former defendants Patterson and Taylor filed a
motion to dismiss the complaint against them pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 8(a) and
relevant case law.
November 13, 2015, plaintiff filed two motions to amend his
complaint. On December 31, 2015, this court denied one motion
as moot. This court also denied the motion to dismiss as moot
and granted plaintiff's other motion to amend his
complaint. Plaintiff was directed to file a particularized
complaint within 14 days. On January 15, 2016, plaintiff
filed his particularized complaint.
February 18, 2016, this court conducted a review of the
particularized complaint pursuant to 28 U.S.C. §
1915(e)(2)(B). This court noted that plaintiff's claims
arose out of alleged excessive use of force incidents and
related disciplinary proceedings. This court dismissed
plaintiff's action against former defendants Solomon and
Taylor without prejudice for failure to state a claim. This
court also dismissed former defendant Patterson without
prejudice because the particularized complaint failed to
include any specific allegations against him/her. Plaintiff
was allowed to proceed with his claims against defendants
Respass, Dillard, Oliver, and Assistant Unit Manager Marcel
Sledge (“Sledge”) and former defendants Akbar and
Officer Hiram Beasley (“Beasley”).
April 8, 2016, plaintiff filed another motion to amend his
complaint. On May 2, 2016, plaintiff filed a motion for
judgment on the pleadings and a motion for default judgment.
On June 22, 2016, plaintiff filed a “motion to relate
NCIC Tort Claim.” On July 25, 2016, plaintiff's
motion to amend was granted, and his motion for judgment on
the pleadings was denied. Plaintiff's action against
former defendants Akbar and Beasley was dismissed without
prejudice for failure to obtain service in accordance with
the requirements set forth in Federal Rule of Civil Procedure
4(m). On September 15, 2016, this court entered a case
February 21, 2017, plaintiff filed another motion for leave
to amend his complaint and a motion for leave to amend his
motion for summary judgment. On February 27, 2017, plaintiff
filed a motion for judgment as a matter of law. This court
denied plaintiff's motion to amend his complaint, granted
his motion to amend his motion for summary judgment, and
denied his motion for judgment as a matter of law.
November 17, 2016, plaintiff filed the instant motion for
summary judgment, which is supported by a verified complaint
(DE 34), memorandum of law (DE 75), plaintiff's
declarations (DE 76, 83, 107, 108), and exhibits consisting
of medical records, (DE 83-3), two Fourth Circuit Court of
Appeals's cases (DE 83-3), legal mail (DE 83-3), legal
materials for an unrelated case (DE 83-3), and medical
records (DE 83-5). On February 22, 2017, defendants filed a
response in opposition.
February 22, 2017, defendants filed their motion for summary
judgment, which is supported by a memorandum (DE 85), a
statement of material facts (DE 86), and an appendix to the
statement of material facts (DE 87), which includes the
following: defendant Respass's affidavit (DE 87-1),
plaintiff's offender information screen (DE 87-2), North
Carolina Department of Public Safety (“NCDPS”)
Internal Investigation Report (DE 87-3), former defendant
87-4), former defendant Akbar's resignation memo (DE
87-5), defendant Oliver's affidavit (DE 87-6), defendant
Stokley's affidavit and video exhibits (DE 87-8),
defendant Dillard's affidavit (DE 87-9), and defendant
Sledge's affidavit (DE 87-10). On May 9, 2017, plaintiff
filed a memorandum in opposition.
OF THE FACTS
as otherwise noted below, the undisputed facts are as
follows: in April of 2014, plaintiff was incarcerated at
Pasquotank Correctional Institution (“Pasquotank
C.I.”). (See Part. Compl. (DE 34) at 7).
Defendants are all current or retired NCDPS correctional
staff members who were assigned to Pasquotank C.I. during the
same time period. (See App. (DE 87) Ex. 6 ¶ 3;
Ex. 10 ¶ 3; Ex. 9 ¶ 4).
April 9, 2014, plaintiff was escorted to medical and then to
segregation by former defendants Akbar and Beasley.
(See Part. Compl. (DE 34) ¶ V). During the
escort, former defendant Akbar and plaintiff had a verbal
confrontation regarding the way former defendant Akbar was
treating plaintiff. (See i d .). In particular,
former defendant Akbar was yanking the handcuffs behind
plaintiff's back in a manner that caused him pain.
(See id.) Former defendant Beasley and a sergeant
overhead the heated words between plaintiff and former
defendant Akbar, which included former defendant Akbar's
threats to “kick [plaintiff's] ass” and
“fucking (sic) [plaintiff] up.” (See
id.; App. (DE 87) Ex. 8 ¶ 6).
result of the April 9, 2014, incident, plaintiff was placed
in segregation for approximately seven days. (See
Part. Compl. (DE 34) ¶ V). Before being released,
defendant Sledge came to plaintiff's cell and asked if
plaintiff would have any further problems with former
defendant Akbar. (See id.) Plaintiff responded,
“no, ” because he wanted to be released and
didn't have any score to settle with former defendant
Akbar. (See id.)
the morning of April 23, 2014, plaintiff was sitting in the
day room when former defendants Akbar and Beasley walked
past. (See i d .) Former defendant Akbar asked
plaintiff when he “got out” and what cell he was
in. (See id.)
that morning, former defendant Akbar, “all alone,
” entered Unit 3 C-block without his duty belt, which
held his radio, baton, and handcuffs. (See id.) Former
defendant Akbar came directly to plaintiff's cell and
told Inmate Best to “keep it moving and close the cell
door behind him.” (See id.) Former defendant
Akbar proceeded to hit plaintiff, wrestle with him, and grab
his testicles. (See id.) Plaintiff admitted that he
struck former defendant Akbar several times, but plaintiff
claims he acted only in self defense and then exited the
cell. (See id; App. (DE 87) Ex. 8
¶ 6). Former defendant Akbar challenged plaintiff to
come back to the cell so they could finish the fight, but
plaintiff refused. (S e e App. (DE 87) Ex. 8
¶¶ 6, 7). As a result of the attack by former
defendant Akbar, plaintiff alleges he has suffered an
aggravation of a previous spinal injury and an injury to his
left testicle. (See Part. Compl. (DE 34) ¶
defendant Beasley and Officer Spruill entered C-block and
asked (unidentified people) where former defendant Akbar
(See id.) They found former defendant Akbar on the
floor and dazed. (See App. (DE 87) Ex. 8 ¶ 5).
Plaintiff said, “[Officer Akbar] needs to get out of
here.” (See i d .) Former defendant Akbar said
he had fallen and hit his head on the sink, but plaintiff
said he “kicked [Officer] Akbar's ass.”
(See id.) Former defendant Beasley and Officer
Spruill did not question why former defendant Akbar was in
plaintiff's cell, and they assisted him out of C-block.
(See Part. Compl. (DE 34) ¶ V).
approximately 11:23 a.m. that day, Correctional Sergeant
Weldon D. McKnight brought former defendant Akbar to the Unit
Manager's Office. (See App. (DE 87) Ex. 10
¶ 4). Former defendant Akbar had facial swelling.
(See id.) When asked how he injured his face, former
defendant Akbar responded that he slipped and fell in
plaintiff's cell and hit his head on the sink. (See
Sledge did not think that the swelling, which was evident on
both sides of former defendant Akbar's face, seemed
consistent with his story that he fell. (See id.)
Defendant Sledge began a preliminary investigation into the
matter by questioning other staff members and reviewing video
footage from the location of the alleged fall. (See
id.) Defendant Sledge determined that the video footage
showed former defendant Akbar enter plaintiff's cell
without wearing his duty belt. (See id.) Defendant
Sledge also concluded that the video showed former defendant
Akbar fall out of plaintiff's cell on his back, plaintiff
on top of him punching, and then plaintiff getting off former
defendant Akbar and going to the common area to sit down.
was then called to defendant Sledge's office and asked
about what happened in his cell. (See Part. Compl.
(DE 34) ¶ V). Plaintiff told his version of the events,
and he was placed in segregation. (See id.)
approximately 11:30 a.m. that day, Unit Manager Kem Spence
and former defendant Akbar went to Captain Stokley's
office. (See App. (DE 87) Ex. 8 ¶ 4). Former
defendant Akbar's face was bruised, and his eye was
blackened and swollen. (See id.) When former
defendant Akbar was asked how he injured his face, he told
Captain Stokley that he fell and struck his face on an
inmate's toilet. (See i d .) Captain Stokley did
not believe this account matched up with bruises, and it
appeared that someone had beaten former defendant Akbar.
(See id.) Former defendant Akbar admitted plaintiff
had hit him one time, and he then fell and struck his head on
the toilet. (See id.) Captain Stokley ordered that
former defendant Akbar be sent for medical care.
(See App. (DE 87) Ex. 8 ¶ 4).
former defendant Akbar left his office, Captain Stokley met
with former defendant Beasley and Officer Spruill, the two
officers who had responded to the incident in plaintiff's
cell. (See id. ¶ 5). Captain Stokley also
talked with Officer Felton, who was in the control area at
the time of the incident and called for assistance. (See
id.) The three officers did not see the physical
confrontation that took place in plaintiff's cell.
Sledge and Captain Stokley viewed the only video footage
available from the April 23, 2014, incident. (See
id. Ex. 10 ¶ 4; Ex. 8 ¶ 8; Ex. 6 Ex. A).
Defendant Sledge and Captain Stokley both saw on the video
that former defendant Akbar went into plaintiff's cell
and then former defendant Akbar fell out of the cell with
plaintiff on top punching him in the face. (See id.
Ex. 10 ¶ 4; Ex. 8 ¶ 8). Plaintiff was then seen
getting up and going to the day room. (See id. Ex.
10 ¶ 4; Ex. 8 ¶ 8; Ex. 6 Ex. A). The video footage
does not show what ...