United States District Court, E.D. North Carolina, Western Division
ORDER & MEMORANDUM & RECOMMENDATION
T. Numbers, II, United States Magistrate Judge
Julio Zelaya Sorto, a state inmate proceeding pro
se, filed this action pursuant to 42 U.S.C. § 1983
(D.E. 1). This matter is before the court upon the following
motions: (1) Sorto's motion for an extension of time to
complete discovery (D.E. 99); (2) Sorto's motion to
strike (D.E. 101); (3) Sorto's motion to relocate
Defendant Dominique McDonald (D.E 101); (4) Defendants Sgt.
Crosson's and Irvin Ryan Jr.'s motion for summary
judgment (D.E. 102); (5) Sorto's cross-motion for summary
judgment (D.E. 110); and (6) Sorto's third motion for
entry of default (D.E. 113). For the following reasons, it is
recommended that Crosson's and Ryan's motion for
summary judgment be allowed in part and denied in part and
Sorto's motion for summary judgment be denied in all
respects. In addition, Sorto's motion for extension of
time is allowed in part and denied in part; Sorto's
motion to strike is denied; Sorto's motion to locate
defendant is allowed; and Sorto's motion for entry of
default is allowed.
2015, Sorto filed a complaint pursuant to 42 U.S.C.
§ 1983. Compl. at 11-20, D.E. 1. Sorto's claims
against defendants Shawn D. Bruton, Monica Bond, and Erica L.
Hargrove, as well as Sorto's requests for injunctive and
declaratory relief, were dismissed without prejudice at
frivolity review. April 19, 2016 Order at 5, D.E. 12. After
frivolity review, defendant Joseph Lightsey filed a motion
for judgment on the pleadings (D.E. 40). The court allowed
this motion, and dismissed Lightsey as a defendant. March 28,
2017 Order (D.E. 95). Sorto's claims for monetary damages
against defendants McDonald, Ryan, and Crosson are still
pending. Ryan and Crosson are represented by counsel, while
McDonald is proceeding pro se (D.E. 15, 19, 34, 66).
was personally served with Sorto's complaint, but did not
file a timely response. Sorto subseuently filed a motion for
entry of default (D.E. 50). In light of 42 U.S.C.
§1997e, the court denied this motion without prejudice,
and ordered McDonald to answer Sorto's
complaint.October 20, 2016 Order, D.E. 64.
McDonald filed an untimely response to this directive (D.E.
82), and Sorto filed a second motion for entry of default
(D.E. 74). The court denied Sorto's second motion for an
entry of default. December 22, 2016 Order, D.E. 84. However,
the court also specifically noted that McDonald's lack of
responsiveness was troubling, and any further failures to
timely respond would likely result in the entry of default
against him. Id. at 8-10.
McDonald is proceeding pro se, Sorto is required by
the Federal Rules to serve copies of pleadings and discovery
on McDonald directly. Fed.R.Civ.P. 5. Accordingly, the court
directed McDonald to either obtain representation or submit a
written statement explaining why the court should not unseal
his address, provide his address to Sorto, and
list his address on the public docket. October 20, 2016 Order
(D.E. 64). McDonald did not respond. Out of an abundance of
caution, the court provided McDonald with additional time.
See December 22, 2016 Order (D.E. 84). However, the
clerk of court's attempt to serve this order on McDonald
by mail was returned as undeliverable with no forwarding
address (D.E. 85). McDonald has not filed any notice of
change of address with the court. Although it is no longer
current, the court provided Sorto with McDonald's
address. See March 27, 2017 Clerk's Office
March 2017, Sorto filed a motion to compel, in which he
requested discovery responses from Ryan (D.E. 91). The court
allowed this motion, and in doing so also extended the
discovery deadline and deadline for filing dispositive
motions (D.E. 97). Just a few days after that, Sorto signed a
motion requesting an extension of these deadlines (D.E. 99).
later filed a motion to strike, contending that
McDonald's untimely answer should be stricken because it
was too vague and ambiguous (D.E. 101). About a month later,
Sorto filed a "motion to relocate" McDonald (D.E.
102). In this motion, Sorto notes that his attempts to serve
discovery requests on McDonald were returned as
undeliverable. Mot. at 9-11, D.E. 102. Thus, he seeks
additional assistance from the court in obtaining a current
address for McDonald.
and Ryan have since filed a motion for summary judgment (D.E.
103), and Sorto responded with a cross-motion for summary
judgment (D.E. 110). Contemporaneous with his cross-motion,
Sorto also filed his third request for an entry of default
against McDonald (D.E. 113).
crux of Sorto's complaint is that McDonald assaulted him
on three occasions, and that Crosson and Ryan were
deliberately indifferent to the danger McDonald posed to him.
During the relevant time period, Sorto resided in the High
Security Maximum Control ("HCON") unit of Polk
Correctional Institution ("Polk"). Medlin Aff
¶ 5, D.E. 106-1. He was housed in HCON due to his
history of assaultive behavior towards staff and other
inmates. Id. The North Carolina Department of Public
Safety ("DPS") employed Ryan as an Assistant
Superintendent at Polk. Ryan Aff. ¶ 3, D.E. 106-4.
Likewise, Crosson and McDonald both worked for DPS as
correctional at Polk. Def Mem. at 2, D.E. 104; Crosson Aff.
¶ 3, D.E. 106-5.
alleges that, on several occasions in 2014, he informed Ryan
and Crosson that "he feared for his personal health and
safety due to serious conflicts he was having with defendant
McDonald." Compl. at 12, 16 D.E. 1. Sorto does not
describe these conversations with much specificity, but he
does contend that he informed Ryan and Crosson that McDonald
threatened to kill him.Id. at 13.
6, 2014, Sorto was permitted to discard some trash in the
recreation area. Gregory Aff. ¶ 6, D.E. 106-7. As he was
doing so, he called McDonald a "faggot" and refused
an order to return to his cell. Id. Sorto also spat
in the direction of McDonald and another correctional
officer. Id. McDonald then became verbally abusive,
and eventually pepper sprayed Sorto. Compl. at 9-11, D.E. 1.
After pepper spraying Sorto, McDonald also punched and kicked
Sorto's arms. Id. at 11. As a result of being
pepper sprayed, Sorto experienced a burning sensation in his
eyes and skin, a migraine headache, and dizziness. Compl. at
12-13, D.E. 1.
who was in charge of the HCON unit that day, directed that
Sorto be removed from his cell in full restraints and
escorted for medical evaluation. Crosson Aff ¶ 6, D.E.
106-5. Crosson contends that she offered Sorto the
opportunity to decontaminate and he refused. Id.
¶ 8. Sorto asserts, however, that Crosson did not offer
decontamination for at least four hours. Compl. at 12, D.E. 1
On July 8, 2014, correctional officers escorted Sorto to the
visitation area in full restraints. Gregory Aff. ¶ 7,
D.E. 106-7. While he was being escorted, Sorto spit in
McDonald's face. Id. McDonald punched Sorto in
the head and then threw him to the floor. Compl. at 15, D.E.
1. After this incident, Sorto underwent a medical evaluation.
Def Ex. A at 2, D.E. 106-2. Sorto had no redness, swelling,
bleeding, blurred vision, or dizziness. Id. He also
did not have any bruising on his head or back, and was
walking normally. Id.
on August 3, 2014, Sorto assaulted McDonald by throwing a
mixture of urine and feces on him through the trap door of
Plaintiff s cell. Id. ¶ 9. After this incident,
Sorto refused to exit his cell to report for a medical
evaluation. Id. ¶ 10; Compl. at 18, D.E. 1.
Sorto told Crosson he did not want to go to the nurse's
office "because he feared for his life because McDonald
has threatened to beat and kill him." Compl. at 18,
D.E. 1. Sorto stated he would not exit his cell unless his
movements were recorded. Id. at 18-19. Crosson
agreed and placed Sorto in full restraints. Crosson Aff.
¶ 10, D.E. 106-5. Crosson recorded the placement of
Sorto in restraints and his removal from his cell on a
hand-held camera. Id. However, she then turned the
camera off because she did not anticipate any further use of
force. Id. After Sorto was removed from his cell,
Crosson left to complete paperwork related to Sorto's
assault of McDonald. Id. ¶ 11.
trip to the medical unit was uneventful. He was then escorted
back to his cell by at least two other officers. Dixon Aff.
¶ 6, D.E. 106-6; Gregory Aff. ¶ 8, D.E. 106-7. As
Sorto was escorted back to his cell, still in full
restraints, McDonald appeared, grabbed Sorto by the shirt,
and punched him in the head. Compl. at 20, D.E. 1; Gregory
Aff. ¶ 8, D.E. 106-7. McDonald threw Sorto to the floor
and continued to punch and kick him. Id. This
assault knocked Sorto unconscious. Id. at 21. The
officers escorting Sorto were surprised by McDonald's
attack. Dixon Aff. ¶ 8, D.E. 106-6; Gregory Aff. ¶
9, D.E. 106-7. The correctional officers intervened and
separated McDonald from Sorto.
she was completing her paperwork, Crosson heard the commotion
caused by McDonald's assault. Crosson Aff. ¶ 12,
D.E. 106-5. She left her office and arrived after other
correctional officers separated Sorto and McDonald.
Id; Bartolomeo Aff. ¶ 7, D.E. 106-8. After this
incident, Sorto underwent a medical evaluation at Polk. Def
Ex. B at 4, D.E. 106-3. Sorto's forehead was swollen, and
he had six abrasions on his arm and chest. Id.
X-rays revealed that Sorto did not have any fractures.
Id. at 5. Sorto was later transported to Durham
Regional Hospital. Dixon Aff. ¶ 7, D.E. 106-6.
Medlin, Jr., a Correctional Lieutenant employed by DPS,
investigated the July 8, 2014 and August 3, 2014 incidents.
Medlin Aff. ¶¶ 2, 6, D.E. 106-1. For each
investigation, Medlin obtained witness statements, reviewed
available video footage, and completed an incident report.
Id. at ¶ 7. Neither Crosson nor Ryan directed
Medlin to ignore any use of force against Sorto. Id.
at ¶ 8. After his investigation, Medlin concluded that
no officer or staff member was aware that McDonald planned to
assault Sorto. Id. at ¶ 9. Medlin recommended
corrective action against McDonald for both incidents. Def
Ex. A at 3, D.E. 106-2; Def Ex. B at 6, D.E. 106-3. McDonald
resigned from his position with DPS while he was under
disciplinary investigation. PI. Ex. 38, D.E. 112-2.
Motion for an ...