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Sorto v. McDonald

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

January 25, 2018

Julio Zelaya Sorto, Plaintiff,
v.
D. McDonald, et al., Defendants.

          ORDER & MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II, United States Magistrate Judge

         Plaintiff 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.

         I. Procedural Background

         In July 2015, Sorto filed a complaint[1] 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).

         McDonald 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.[2]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.

         Because 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[3], 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 Remark.

         In 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).

         Sorto 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.

         Crosson 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).

         II. Factual Background

         The 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.

         Sorto 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.[4]Id. at 13.

         On July 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.

         Crosson, 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.[5] 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.

         Finally, 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."[6] 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.

         Sorto's 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.[7]

         While 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.

         Charles 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.

         III. Motion for an ...


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