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Thorpe v. Barrow

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

March 20, 2018



          LOUISE W. FLANAGAN, United States District Judge

         The matter is before the court on defendants' second motion for summary judgment (DE 70) pursuant to Federal Rule of Civil Procedure 56, and plaintiff's motion for trial and subpoena (DE 87). The motion for summary judgment has been fully briefed and defendants did not respond to the motion for trial and subpoena. In this posture, the issues raised are ripe for adjudication.


         On January 15, 2015, plaintiff, a state inmate, filed Thorpe v. Barrow, No. 5:15-CT-3016-FL (E.D. N.C. Jan. 15, 2015) (“Thorpe I”), pro se, pursuant to 42 U.S.C. § 1983, alleging that he was subject to an illegal arrest and incarceration, and that defendants used excessive force against him after he was detained. On July 22, 2015, the court conducted a frivolity review pursuant to 28 U.S.C. § 1915, and the court determined that plaintiff's illegal arrest and incarceration claim was barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that a state prisoner may not maintain a § 1983 action for damages for an allegedly unconstitutional conviction without first showing his conviction or sentence has been reversed, expunged, declared invalid, or otherwise called into question).[2] The court allowed plaintiff's excessive force claim against defendants J.M. Gwinn, D.A. Elliot, and Jeffrey Macialek to proceed, and dismissed the remaining defendants.

         On September 29, 2015, plaintiff, filed Thorpe v. Barrow, No. 5:15-CV-511-FL (E.D. N.C. Sept. 29, 2015) (“Thorpe II”), pro se, [3] alleging substantially the same claims as those alleged in Thorpe I, against virtually identical parties. On November 15, 2016, the court consolidated Thorpe I and Thorpe II, directing that “all future docket entries shall be docketed in the lead case - Thorpe I.” (Nov. 15, 2016 Order (DE 52) at 7). The court also granted plaintiff's Federal Rule of Civil Procedure 59(e) motion, reinstating plaintiff's unlawful arrest claims because his underlying state court convictions had been vacated and those claims were no longer barred under Heck. (See id. at 5). Plaintiff was directed to file a particularized amended complaint and “specifically name each defendant he seeks to sue and to clearly set forth each of his claims against such defendants in one single complaint.” (Id. at 6). Plaintiff was further notified “that his amended complaint will be considered his complaint in its [entirety], and the court will not review plaintiff's other filings to glean any misplaced claims.” (Id.). The court denied defendants' then-pending first motion for summary judgment in Thorpe I as moot in light of the court's ruling directing plaintiff to file an amended complaint.

         On November 29, 2016, plaintiff filed as directed an amended complaint. On December 7, 2016, the court conducted a frivolity review of plaintiff's amended complaint pursuant to 28 U.S.C. § 1915. Former defendant E. N. Bagshawe, the attorney who represented plaintiff during his state criminal proceedings, was dismissed without prejudice because plaintiff failed to allege facts tending to establish that he was a state actor. The court also dismissed without prejudice former defendants Michael Waters and Melissa D. Pelfrey, the state prosecutors involved with plaintiff's state criminal proceedings, because plaintiff's claims against them were barred by the doctrine of prosecutorial immunity. Plaintiff's claims against former defendant John Doe Police Officers were also dismissed without prejudice. The court allowed plaintiff to proceed with his excessive force and false arrest/false imprisonment claims against Marcus Barrow, the chief of the City of Henderson Police Department, and Henderson police officers J.M. Gwinn, D.A. Elliott, and Jeffrey Macialek.

         On August 15, 2017, the court granted in part and denied in part defendants' motion to dismiss. The court dismissed plaintiff's claims to the extent they could be construed to allege any state law claims, and denied the motion insofar as it sought dismissal of plaintiff's § 1983 claims. Thereafter, the court entered an amended scheduling order, which established a discovery deadline of September 18, 2017, and a dispositive motion deadline of October 18, 2017.

         Defendants filed the instant motion for summary judgment (DE 70) on October 18, 2017. In their motion, defendants argue that they are entitled to summary judgment for the following reasons: (1) plaintiff's false arrest/false imprisonment claim lacks merit because defendants had probable cause to arrest plaintiff; (2) defendants are entitled to qualified immunity on plaintiff's excessive force claims; and (3) there is no record evidence establishing any cognizable §1983 claim against defendant Barrow. In support of the motion, defendants rely upon a statement of material facts and an appendix which includes personal affidavits from defendants Gwinn, Elliot and Macialek, an affidavit from witness Jonathan Thomas, and excerpts from the transcripts of plaintiff's depositions. Plaintiff responded to the motion on January 12, 2018, and relies upon as part of his response various state court records from the underlying state criminal proceedings and medical records indicating plaintiff uses a Continuous Positive Airway Pressure (“CPAP”) machine when sleeping.

         On February 14, 2018, plaintiff filed the instant motion for trial and subpoena (DE 87), requesting that his “claim . . . be heard in a federal court setting” and also that the court issue various subpoenas on his behalf. Defendants did not respond to that motion.


         Except where otherwise noted by the court, the undisputed facts are as follows. On May 1, 2014, the Henderson Police Department received a report about a suspicious person, described as a black male wearing a white shirt, walking in the Wendover Drive area of Henderson, NC at approximately 2:49 a.m. (Thomas Aff. (DE 72-1) ¶ 3). Officer Jonathan Thomas and defendant D.A. Elliot responded to the call. When he arrived at the scene, officer Thomas observed plaintiff in a white t-shirt walking in someone's yard.[4] (Id. ¶ 4). When plaintiff observed the officers, he ran from them. (Pl.'s First Dep. (DE 72-3) at 52:20-21). Plaintiff testified that, “I ran up through, I think some houses, some subdivision.” (Pl.'s Second Dep. (DE 72-7) at 20:12-13). Plaintiff also admitted that he was walking in the Wendover Drive area that night and wearing a “bright, brand new, sparkling white, won't a dot on it, Nike shirt.” (See Pl.'s First Dep. (DE 72-3) at 52:13-15).

         Officers then commenced a search of the area for plaintiff. As defendant Elliot was searching, a resident came outside and informed Elliot that he had just seen a black male wearing a white t-shirt run down a hill on his property, headed across a creek bed towards a wooded area. (Elliot Aff. (DE 72-2) ¶ 7). Defendant Elliot went down to the creek area to search for plaintiff. (Id. ¶ 8). As he was walking to the creek bed, he found a black global position system (“GPS”) unit and a pack of batteries on the ground. (Id. ¶ 11). The GPS unit and batteries appeared to be dry, even though it had been raining that night. (Id. ¶¶ 11-12).

         Defendant Elliot reported over radio that he had found a GPS unit and batteries that appeared recently dropped on the ground. (Elliot Aff. (DE 72-2) ¶ 12; Gwinn Aff. (DE 72-4) ¶ 3). Defendant Gwinn, who had arrived on the scene, asked defendant Macialek to bring the canine unit to assist in the search for plaintiff. (Gwinn Aff. (DE 72-4) ¶¶ 3-4).

         The canine tracked plaintiff through the yards of several private residences, and began circling a blue Ford truck parked in a backyard. (Id. ¶ 5). Defendants discovered plaintiff lying down in the front seat of the truck. (Id. ¶ 6). Plaintiff testified that he entered what he believed to be an abandoned car because he was scared of the canine. (Pl.'s First Dep. (DE 72-3) at 53:4-20). Plaintiff also admitted that he did not have the owner's permission to enter the vehicle. (Pl.'s Second Dep. (DE 72-7) at 26:2-9). Defendants Gwinn, Elliot, and Macialek observed plaintiff sweating profusely and short of breath, and that he had red dirt on his shirt and on the left side of his head. (Gwinn Aff. (DE 72-4) ¶ 6; Elliot Aff. (DE 72-2) ¶¶ 17-18; Macialek Aff. (DE 72-5) ¶ 12).

         Defendant Elliot drew his duty weapon and ordered plaintiff to get out of the vehicle. (Elliot Aff. (DE 72-2) ¶ 16). Plaintiff got out of the vehicle and was placed in handcuffs, which he alleges were “very tight.” (Elliot Aff. (DE 72-2) ¶ 16; Macialek Aff. (DE 72-5) ¶ 11; Am. Compl. (DE 53) at 3). Officer Thomas transported plaintiff to the Henderson Police Department. (Thomas Aff. (DE 72-1) ¶ 15).

         While plaintiff was in transit, defendants Elliot and Macialek stayed at the scene to collect evidence. (Elliot Aff. (DE 72-2) ¶ 21; Macialek Aff. (DE 72-5) ¶ 16). Defendant Elliot interviewed the resident who owned the vehicle plaintiff was found in, and the resident confirmed he did not know plaintiff and did not give him permission to enter the vehicle. (Elliot Aff. (DE 72-2) ¶ 22). Defendant Elliot then used the “home button” to locate the owner of the GPS unit he found while searching for plaintiff. (Id. ¶ 24). Elliot located the owner, who confirmed that the GPS unit belonged to her and that it had been taken from her vehicle that night. (Id. ¶ 26). Defendant Macialek also located another vehicle in the area which had a shattered window, and the owner of that vehicle stated that some change had been stolen from inside the vehicle. (Macialek Aff. (DE 72-5) ¶ 17).

         When they arrived at the Henderson Police Department, officer Thomas placed plaintiff in an interview room. (Thomas Aff. (DE 72-1) ¶ 16). The parties dispute what occurred next. According to officer Thomas, plaintiff became hostile and started yelling and cursing at him. (Thomas Aff. (DE 72-1) ¶ 16). Although plaintiff testified at times that he “didn't give [the officers] no hard time” he also admitted that he was “kicking the door” of the interview room after he was told to calm down. (Pl.'s First Dep. (DE 72-3) at 58:2-3, 58:23-25, 67:7-8). Officer Thomas determined that he could not remove the handcuffs due to plaintiff's agitated state and because plaintiff was substantially larger than Thomas. (Thomas Aff. (DE 72-1) ¶ 17). Officer Thomas was also aware of another individual who had recently escaped from the interview room, and he was concerned, based on plaintiff's prior flight from police and his obstreperous behavior, that plaintiff might also attempt to escape. (See id.).

         When defendant Gwinn arrived at the station, officer Thomas requested that Gwinn assist with removing plaintiff's handcuffs so he could use the restroom. (Thomas Aff. (DE 72-1) ¶ 18; Gwinn Aff. (DE 72-4) ¶ 11). Defendant Gwinn entered the interview room, and told plaintiff he would be allowed to use the restroom if he calmed down. (Gwinn Aff. (DE 72-4) ¶ 14). Sergeant Gwinn then removed the handcuffs and escorted plaintiff to the restroom. (Id.; Pl.'s First Dep. (DE 72-3) at 58:13-15)). Plaintiff testified that after he finished using the restroom, he walked out and “[defendant Gwinn] ain't said nothing to me. [Defendant Gwinn] standing there, right there, and [the interview room is] where you took me in the beginning. I guess that's where you want me to be at. I know you didn't want me to stay in the bathroom.” (Pl.'s First Dep. (DE 72-3) at 67:13-17). Plaintiff also testified that after he used the restroom, “I go back in my cell, bent down, picking up my change that fell out of my cargo pocket from when I was kicking the door.” (Id. at 58:23-25).

         According to defendant Gwinn, after plaintiff left the restroom, he ignored numerous orders to place his hands behind his back so officers could put the handcuffs on him again. (Gwinn Aff. (DE 72-4) ¶¶ 17-20). Instead, plaintiff walked back to the interview room unrestrained. (See id.; Thomas Aff. (DE 72-1) ¶ 24). Defendant Gwinn followed him into the interview room and again instructed him to place his hands behind his back so he could be handcuffed. (Thomas Aff. (DE 72-1) ¶ 25; Gwinn Aff. (DE 72-4) ¶ 18). Plaintiff refused to comply, and instead reached his hands into his pockets, pulled out a large handful of change, and dropped it on the floor. (Thomas Aff. (DE 72-1) ¶ 27; Gwinn Aff. (DE 72-4) ¶ 20). Plaintiff then bent over and began slowly picking the change up off the floor. (Thomas Aff. (DE 72-1) ¶ 27; Gwinn Aff. (DE 72-4) ¶¶ 20-21). Defendant Gwinn stated he would pick the change up for him, and again instructed him to stand up and place his hands behind his back, but plaintiff refused to comply. (Thomas Aff. (DE 72-1) ¶ 29; Gwinn Aff. (DE 72-4) ¶ 22).

         Defendant Gwinn was aware that another person had recently escaped from custody in that same interview room, and he was concerned that plaintiff could overpower both him and officer Thomas if he attempted to escape. (Gwinn Aff. (DE 72-4) ¶¶ 23-24). Defendant Gwinn removed his Aerosol Defense Spray (“ADC spray” or “pepper spray”) and instructed plaintiff to stand up and place his hands behind his back or he would use the spray. (Thomas Aff. (DE 72-1) ¶ 30; Gwinn Aff. (DE 72-4) ¶ 28). Plaintiff stood up, and officer Thomas attempted to grab his hands to place them in handcuffs, but plaintiff pulled his hands away. (Thomas Aff. (DE 72-1) ¶ 31; Gwinn Aff. (DE 72-4) ¶ 29). At this point, Gwinn instructed officer Thomas to move away and deployed the ADC spray for three to five seconds. (Thomas Aff. (DE 72-1) ¶ 31; Gwinn Aff. (DE 72-4) ¶ 29). After the spray was deployed, plaintiff continued to refuse the officers' requests to place his hands behind his back, and attempted to leave the interview room. (Thomas Aff. (DE 72-1) ¶¶ 32-33; Gwinn Aff. (DE 72-4) ¶¶ 30-31). Defendant Gwinn and officer Thomas stopped him, however, and were able place the handcuffs on him. (Thomas Aff. (DE 72-1) ¶¶ 32-33; Gwinn Aff. (DE 72-4) ¶¶ 30-31).

         Plaintiff's version of these events (which the court accepts as true for present purposes) is somewhat different. Plaintiff confirms that he was not in handcuffs when he walked out of the restroom, that he entered the interview room (unrestrained) to pick up change that had fallen out of his pockets, and that he was not in handcuffs when defendant Gwinn deployed the ADC spray. (Pl.'s First Dep. (DE 72-3) at 58:18-59:8). Plaintiff denies, however, that the officers instructed him to place his hands behind his back so he could be handcuffed before defendant Gwinn deployed the ADC spray. (Id. at 67:18-25). Plaintiff testified, for example, as follows:

But I ain't got the cuffs on me now. I go back in my cell [after leaving the restroom], bent down, picking up my change that fell out of my cargo pocket from when I was kicking the door. He come up behind me (gesturing) with the mace. I'm like this. He macing me straight in my face while I'm picking up my change. [Defendant Gwinn said, ] “Turn around. Put your hands behind your back.” I'm like, “Oh, man. What you macing me for? I got my back to you.” Bent down, I'm not bothering you. . . .
Q: He said, “Put your hands behind your back”?
A: After he maced me.
Q: After he maced you?
A: Yes, sir. And my back is to him. I'm bending down, picking up change.
Q: All right.
A: No. threat to him whatsoever.

(Id. at 58:21-59:8, 67:18-25). Plaintiff also testified that the officers “use[d] about the whole can” of ADC ...

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