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Sherrod v. Respass

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

September 18, 2017

MARION L. SHERROD, Plaintiff,
v.
COLBERT L. RESPASS, SEAN DILLARD, CAPT. OLIVER, and MARCEL SLEDGE, Defendants.[1]

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This 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 plaintiff's motion.

         STATEMENT OF THE CASE

         On 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 proceed.

         On June 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.

         On 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.

         On 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”).

         On 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 management order.

         On 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.

         On 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.

         On 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 Akbar's resignation

         (DE 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.

         STATEMENT OF THE FACTS[2]

         Except as otherwise noted below, the undisputed facts are as follows: in April of 2014, plaintiff was incarcerated at Pasquotank Correctional Institution (“Pasquotank C.I.”).[3] (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).

         On 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).

         As a 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.)

         During 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.)

         Later that morning, former defendant Akbar, “all alone, ” entered Unit 3 C-block without his duty belt, which held his radio, baton, and handcuffs.[4] (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.[5] (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.[6] (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.[7] (See Part. Compl. (DE 34) ¶ V).

         Former defendant Beasley and Officer Spruill entered C-block and asked (unidentified people) where former defendant Akbar was.[8] (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).

         At 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 id.)

         Defendant 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. (See id.)

         Plaintiff 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.)

         At 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).

         After 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. (See id.)

         Defendant 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 ...


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