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Perdue v. Harrison

United States District Court, M.D. North Carolina

October 24, 2017

BOBBY JOHNATHAN PERDUE, II, Plaintiff,
v.
TITUS HARRISON, Defendant.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States Magistrate Judge

         This case comes before the undersigned United States Magistrate Judge for a recommendation on Defendant's Motion to Dismiss (Docket Entry 14) (the “Motion”). For the reasons that follow, the Court should grant in part and deny in part the Motion.

         BACKGROUND

         Bobby Johnathan Perdue, II (the “Plaintiff”), a pretrial detainee proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 against Titus Harrison (the “Defendant”) in his individual and official capacities, alleging that Defendant used excessive force against Plaintiff in violation of his fourteenth-amendment rights. (See Docket Entry 2 (the “Complaint”) at 5.)[1]According to the Complaint:

         On April 23, 2017, Defendant, a sergeant with the Rockingham County Sheriff's Department, conducted a search of Plaintiff's cell in the Rockingham County Jail. (Id. at 4.) Defendant “skipped cells 108-112 and came in [Plaintiff's cell] first. This [wa]s the second time [Defendant] ha[d] singled [Plaintiff] out.” (Id. at 7.) Defendant “found contraband under the mat of Plaintiff[']s cell mate” and “handcuffed and escorted [Plaintiff and his cell mate] to holding cells in Booking.” (Id. at 4.) “Plaintiff and his cell mate were then escorted back to their cell and told to pack, ” and subsequently “were escorted . . . to Segregation.” (Id.) This exchange then occurred:

[Plaintiff] asked [Defendant, ] “[W]hy do you have it out for me? You['re] always fucking with me.” [Defendant] mocked [Plaintiff] in reply. [Plaintiff] asked [Defendant] to “stop mocking [him], ” to which [Defendant] mocked [him] again in reply. [Plaintiff] told [Defendant] he “was a child and need[ed] to grow up. You['re] a sergeant act like it!” [Defendant's] reply was “you['re] a pill head. You need to stop doing pills[, ] your eyes are rolling in the back of your head!” [Plaintiff] said[, ] “You need to stop doing steroids. That[']s why Miss Terry won[']t marry you, your dick[']s shribbled [sic] up!”

(Id. at 9; accord id. at 4-5.)

         At that point, Defendant “told Plaintiff to enter the bubble, ”[2] “closed the door sep[a]rating himself and Plaintiff from the other officers, ” and “directed Plaintiff to put his box down.” (Id. at 5.) After Plaintiff did so, Defendant “stepped into Plaintiff[']s face” (id.), in response “to which [Plaintiff] held [his] hands out to [his] side in a non threat[en]ing way and tried to back away” (id. at 9; accord id. at 5). Defendant then “grabbed Plaintiff by his throat using his right hand, he then slammed Plaintiff on the ground by his throat. While still choking Plaintiff[, Defendant] used his left hand to strike Plaintiff in the right eye causing bruising and swelling.” (Id. at 5.) “At no point did Plaintiff resist or refuse [Defendant].” (Id.) “Some other officers then piled on top of [Plaintiff] and restrained [his] hands while [Defendant] was still choking [him]. The whole time [Defendant] was on top of [Plaintiff] he was smiling saying ‘you ain't ready for this' repeatedly.” (Id. at 10.)[3]

         “The following day . . . Plaintiff was took [sic] to the nurse and treated for a swollen bruised right eye, scrapes and abrasions on his left hand, a possible sprain of his right arm and wrist and bruising on his neck, legs, and hip.” (Id. at 5; see also id. at 11 (alleging that the nurse prescribed Plaintiff ibuprofen).) Plaintiff contends that Defendant's use of excessive force violated his constitutional rights (id. at 5), [4] and requests declaratory and injunctive relief as well as money damages (id. at 14).

         In response, Defendant moved to dismiss the Complaint (see Docket Entry 14), alleging first that it fails to assert a viable official-capacity claim (see Docket Entry 15 at 5-6). Defendant further maintains that the Complaint lacks sufficient factual matter regarding its individual-capacity claim and that, regardless, qualified immunity precludes relief. (See id. at 7-11.) Plaintiff filed a response. (Docket Entry 18.) Defendant did not reply. (See Docket Entries dated Aug. 8, 2017, to present.)

         DISCUSSION

         I. Official Capacity Claim

         With respect to local government officials, official capacity liability attaches under Section 1983 only if “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 121 (1992) (internal quotation marks omitted). Notably, an official's discretionary acts, exercised in carrying out official duties, do not necessarily represent official policy. Gantt v. Whitaker, 203 F.Supp.2d 503, 509 (M.D. N.C. 2002). “Rather, the official must have ‘final authority' over government policy with respect to the action in question” to trigger official capacity liability. Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 481-82 (1986)).

         Here, Plaintiff alleges injury from Defendant's actions, but does not assert that Defendant acted pursuant to any official policy or custom of either the Rockingham County Sheriff's Office or the Rockingham County Detention Facility where Defendant works. (See generally Docket Entry 2.) Nor does the Complaint allege that Defendant possesses “final authority” over any such policy. ...


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