United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, United States District Judge
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.
OF THE CASE
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). 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.
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,  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
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.
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.
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.
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.
OF THE FACTS
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. (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
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).
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) ¶¶
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).
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) ¶
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)
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.).
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).
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) ¶
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).
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,
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 ...