United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge
MATTER comes before the Court on a Motion for
Summary Judgment by Defendant Kyle Collins, (Doc. No. 72).
Plaintiff is represented by Ernest Charles Grose, Jr., and
Meghann K. Burke.
filed this action under 42 U.S.C. § 1983 on July 27,
2015, alleging claims of excessive force and deliberate
indifference to his medical needs by the Henderson County
Sheriff's Office, Henderson County Sheriff's Officers
Kyle Collins and Captain Chris Denny, Henderson County
Sheriff Charles McDonald, Captain Player, Lieutenant
McDonald, Henderson County Law Enforcement Commissioner, John
Doe Officers # 1-3, and Jane Doe, the Nurse Administrator at
the Henderson County Jail (the “jail”). (Doc. No.
1). On July 14, 2016, after initial review, this Court
allowed the claims to proceed against Collins, John Does 1-3,
and Jane Doe. (Doc. No. 33). The Court granted
Plaintiff's motion to amend the Complaint and, on October
12, 2016, Plaintiff filed a Proposed Amended Complaint, in
which he identified “John Doe 2” as FNU Newell,
identified as a correctional officer at the jail. (Doc. No.
51). In the Amended Complaint, Plaintiff alleges that
Defendant Collins used excessive force against Plaintiff and
that the John Doe Defendants failed to intervene in the use
of excessive force. Plaintiff also named as a Defendant
Henderson County Sheriff Charles L. McDonald.
August 4, 2017, Defendant Collins filed the pending summary
judgment motion. (Doc. No. 72). On August 14, 2017, this
Court entered an order in accordance with Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising
Plaintiff of the requirements for filing a response to the
motion for summary judgment and of the manner in which
evidence could be submitted to the Court. (Doc. No. 73).
Plaintiff responded to the summary judgment motion on August
28, 2017, and Defendant filed a Reply on September 5, 2017.
(Doc. Nos. 74, 75). On February 15, 2018, the parties filed a
stipulation of dismissal as to Newell and McDonald, and
agreed that Collins is the only remaining Defendant in this
action. (Doc. No. 78 at 1).
Plaintiff Is Arrested on March 24, 2015, and Taken to
Hendersonville Police Department (“HPD”) arrested
Plaintiff on March 24, 2015, for possession of
methamphetamine and two counts of resisting a public officer.
(Doc. No. 72-3 at 18:21-23; 20:23-25; 21:1: Pl. Dep.; Doc.
No. 72-6: Collins Dec. Attachment A). After his arrest, HPD
took Plaintiff to the jail. (Doc. No. 72-6 at ¶ 4). When
an arrestee is brought to the jail, the arresting officer
serves the warrant on the arrestee and then takes the
arrestee before the magistrate to determine the conditions of
release. (Id. at ¶ 3). HPD informed officers at
the jail that Plaintiff refused to give them his real name.
(Id. at ¶ 4). As a result, Plaintiff was served
with “John Doe” warrants for possession of
methamphetamine, possession of marijuana, and two counts of
resisting arrest. (Id., Attachment A).
Plaintiff was served with the warrants, he was taken to
Henderson County Magistrate Kathryn Carpenter to receive the
conditions of his release. (Id. at ¶ 5).
Plaintiff refused to give Magistrate Carpenter his name, and
one of the conditions of his release was that he produce a
valid form of identification and be fingerprinted.
(Id. at ¶ 5, Attachment B; Doc. No. 72-3 at
82:24-25; 83:1-2). Plaintiff was then taken to the booking
area for his photograph and fingerprinting to confirm his
identity and make sure he had no outstanding warrants. (Doc.
No. 72-6 at ¶ 3).
Plaintiff Is Taken to Booking, Secured to a Bench, and
Assessed by a Jail Nurse
being photographed and fingerprinted, Plaintiff was placed on
a bench in the booking area. (Doc. No. 72-6 at ¶ 6). He
began moving around the bench and standing up and down,
twisting around uncontrollably. (Id.). Plaintiff
admits he was constantly moving around on the bench, but he
attributes it to shooting pains across his body. (Doc. No.
72-3 at 27:7-12). As a result, Plaintiff could not sit up on
the bench and was “moaning…writhing, like I-I
was almost rolling where I was in pain.” (Doc. No. 72-3
at 27:15-16). When Plaintiff tried to sit down on the bench,
the pain wouldn't stop, and he lay down on the bench and
started to cry. (Doc. No. 72-3 at 28:4-5).
on Plaintiff's erratic behavior, he was handcuffed to the
bench. (Doc. No. 72-6 at ¶ 6; Doc. No. 72-3 at
22:13-17). Plaintiff asked the jailers and arresting officers
to help him and do something because “he didn't
know what was happening with my body.” (Id. at
34:11). Plaintiff was writhing on the bench when Collins
approached him and told him that he needed to sit up and shut
up. (Id. at 30:7-10). Plaintiff said, “Please,
you know, it hurts. Please help me.” (Id. at
35:22-23). Collins responded that Plaintiff needed to sit up
and be quiet. (Id. at 35:24-25; 36:1). Collins then
contacted the nurse on duty, Darla Dunaway, to assess
Plaintiff. (Doc. No. 72-6 at ¶ 6). Dunaway talked with
Plaintiff and asked him what was wrong. (Id. at
¶ 7). He informed her that he had recently used
methamphetamine, his ribs were broken, and he wanted to go to
the hospital. (Id.). Nurse Dunaway assessed him
and informed Collins that Plaintiff was impaired.
(Id.). Dunaway offered Plaintiff a “packet of
medication, ” but Plaintiff refused it “because
[he] didn't know what was happening to me.” (Doc.
No. 72-3 at 36:23-25). During the entire time Dunaway was
questioning him, Plaintiff was moving constantly on the
bench, raising his arms over his head, and constantly
twisting his body. (Doc. No. 72-6 at ¶ 7). Based on
Plaintiff's disruptive and erratic behavior, Collins left
him on the bench to give him time to calm down before
beginning the booking process. (Id. at ¶ 8).
Plaintiff Begins the Booking Process
Plaintiff Is Photographed
forty-five minutes to an hour later, Plaintiff was taken to
the photograph and fingerprint machine. (Doc. No. 72-3 at
32:15-17). Collins took Plaintiff off the bench to start the
booking process, but he did not remove Plaintiff's
handcuffs due to his erratic behavior and earlier
noncompliance. (Doc. No. 72-6 at ¶¶ 9-10). Collins
walked Plaintiff to the photo station and Plaintiff became
very tense along the way. (Id. at ¶ 10).
Collins asked him to stand still to take his photograph, but
Plaintiff initially refused Collins' instructions.
(Id.). Plaintiff began swaying back and forth, and
he started to clench up his body. (Id.). Plaintiff
admits that he was not cooperating with Collins, but again
attributes it to his ongoing pain. Plaintiff remembers
“trying to breathe, trying to stand up, trying to stand
up straight for them.” (Doc. No. 72-3 at 47:15-16).
Plaintiff had to lean against the wall, “trying to
explain that I couldn't breathe, that I was having a
problem, that I needed to lay down…That I felt like I
was going to pass out.” (Id. at 47:18-24).
Instead of going through the photographing process, Plaintiff
begged to be allowed to lie down while at the photograph
area: “I remember just begging, please, just let me lay
down, if just for a minute.” (Id. at
prompted Plaintiff to stand up. (Id. at 49:23-25;
50:1-5). Plaintiff once again conveyed to Collins and another
deputy that he was having trouble breathing, but the only
response he got was “stand there and shut up.”
(Id. at 50:18-19). Plaintiff was
“constantly” complaining at the photo station
that he couldn't stand up, and “it was just a
constant-I need help. It was just over and over . . . I
couldn't even stand up straight.” (Id. at
51:22-25; 52:1-4). Collins believed that he needed to attempt
to deescalate the situation, as Plaintiff appeared to be
angry, so he maintained an open non-aggressive posture in
talking to Plaintiff, and Plaintiff ultimately agreed to
comply with Collins' request for him to take a
photograph. (Doc. No. 72-6 at ¶ 10). After finally
getting his photograph taken, Plaintiff was taken to the
fingerprint area. (Doc. No. 72-3 at 53:19-23).
Collins Attempts to Take Plaintiff's Fingerprints but
Plaintiff Refuses Collins' Orders and Makes an Aggressive
Move towards Collins
fingerprinting process is twofold: (1) having a picture taken
to compare to the fingerprints and (2) having fingerprints
taken. (Doc. No. 72-6 at ¶ 11). To begin the process,
Collins asked Plaintiff to get his picture taken, but
Plaintiff refused, stating, “You need to take me to the
hole right now.” (Id.). Plaintiff does not
deny refusing Collins' orders to get his picture taken at
the fingerprinting station: “I just remember saying to
them, please, please, just give me a minute. Let me sit down
or at least let me-give me-give me a minute, let me lay down.
Put me in a cell.” (Doc. No. 72-3 at 55:12-15).
Plaintiff also admitted to moving around at the
fingerprinting station because:
things [pain] started to get worse. My vision would blur. And
like-and I remember the pain in my chest starting to get
worse. And, like, there's just no way that I could make
it stop. I remember just trying to move to make it quit. And
like, you know, anything I could to just try to make it stop,
and it wouldn't quit… I remember moving and to try
to find different positions, like, to make it just quit.
(Id. at 54:1-6; 55:1-2).
asked Plaintiff to hold still and allow his photograph to be
taken. (Doc. No. 72-6 at ¶ 11). Plaintiff attempted to
pull free from Collins' hand, so Collins grabbed him on
the arm and told him to stop moving. (Id.).
Plaintiff admits not complying with Collins' commands:
“I remember saying it [requesting to lie down]
repeatedly and being told, you're not doing shit until we
get this done.” (Doc. No. 72-3 at 56:15-16). Plaintiff
then jerked away from Collins' arm and turned into
Collins from about one to two feet away in an aggressive way.
(Doc. No. 72-6 at ¶ 11). Plaintiff admits turning around
and looking at Collins from one foot away, and yelling
“[t]hen hurry the hell up, man, because I can't
take this.” (Doc. No. 72-3 at 56:17-18, 23-25; ...