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Allen v. Anderson

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

March 29, 2018

JOHNNIE D. ALLEN, Plaintiff,
v.
REGGILLETTE ANDERSON, [1]HUBERT PERSON, DR. GEORGE SOLOMON, CAPTAIN COBB, MR. SAULS, MR. HOWELL, MICHAEL MILLS, DARLYN WHITE, WALTER PENUEL, OFFICER GAY, ROBERT VANDIFORD, CAPTAIN R. WATSON, SARGENT NOBLE, ALVIN KELLER, and DANNY SANFRIT, Defendants.

          ORDER

          LOUISE W. FLANAGAN, United States District Judge

         This matter is before the court on plaintiff's motion for default judgment (DE 144) and motion for reconsideration (DE 145). Defendants did not respond to the motions. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court denies the motions; however, to correct an error in the analysis in its prior order granting summary judgment, the court corrects and amends such order, as set forth herein. Thereupon, summary judgment shall be entered in favor of all defendants in this matter.

         BACKGROUND

         Plaintiff, a state inmate, initiated this 42 U.S.C. § 1983 suit pro se on September 30, 2013, alleging he was subject to excessive force and retaliation when he was an inmate at the Maury Correctional Institution (“Maury C.I.”). The excessive force incidents purportedly occurred on March 31, 2010, April 6, 2010, April 21, 2010, and June 4, 2010. The defendants are correctional officers and other staff employed at Maury C.I. during the subject time period.

         Defendants Gay and Person failed to request that the North Carolina Attorney General's office represent them in this matter, and did not otherwise file notices of appearance. The court, accordingly, entered default against them on June 25, 2015.

         On September 18, 2017, the court granted the remaining defendants' motion for summary judgment, which disposed of all claims in this action except the ones asserted against defendants Gay and Person. In that same order, the court notified the parties, pursuant to Federal Rule of Civil Procedure 56(f)(1), that it intended to grant summary judgment in favor of nonmovants, defaulting defendants Gay and Person, for the same reasons summary judgment was entered for the moving parties, and provided the parties 14 days to show cause why summary judgment should not be granted in those defendants' favor.

         In response to the court's order to show cause, plaintiff filed the instant “motion for default judgment.” Plaintiff then filed the instant motion for reconsideration, arguing that the court erred in granting summary judgment to the non-defaulting defendants.

         DISCUSSION

         A. Motion for Default Judgment

         The court construes plaintiff's motion for default judgment as a response to its order to show cause why summary judgment should not be granted as to defendants Person and Gay, pursuant to Federal Rule of Civil Procedure 56(f)(1). Summary judgment is appropriate when there exists no genuine issue of material fact, and the court may award judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). Where the court has identified the basis for summary judgment as to defendants Person and Gay, pursuant to Rule 56(f)(1), plaintiff now “may not rest upon the mere allegations or denials of his pleading” but “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248-49; see also Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250.

         Plaintiff argues defendant Person is not entitled to summary judgment because he (1) “[p]articipated directly in the constitutional violations”; (2) “[f]ailed to remedy the wrong(s) after being informed through report, appeal[, ] emergency grievance, and personally”; (3) “[w]as grossly negligent in supervising subordinates who committed the wrongful acts”; and (4) “exhibited deliberate indifference to the rights of [plaintiff] by failing to act on information indicating that unconstitutional acts were occurring.” (See Mot. Default J. (DE 144) at 5). Plaintiff appears to allege that defendant Person is liable under a supervisory liability theory. But, as the court already has explained, (see Sept. 18, 2017, Order (DE 141) at 25), plaintiff failed to establish an underlying constitutional violation that would support a supervisory liability claim against any defendant. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).

         To the extent plaintiff alleges defendant Person “participated directly' in the excessive force incidents, plaintiff's own declarations and verified complaint demonstrate that defendant Person never touched plaintiff, much less subjected him to excessive force.[2] (See Pl.'s First Decl. (DE 119-1); Pl.'s Second Decl. (DE 134-2); Am. Compl. (DE 16)). And plaintiff's retaliation claim against Person fails for the same reasons the court granted summary judgment on the claim in favor of the non-defaulting defendants: there is no evidence that defendants acted in retaliation because he attempted to exercise his constitutional rights. (Sept. 18, 2017, order (DE 141) at 24).

         As to defendant Gay, plaintiff argues he is not entitled to summary judgment for three reasons: (1) based on his participation in the June 4, 2010, incident; (2) because Gay “confiscated [plaintiff's] property with no penalogical [sic] justification; and (3) because Gay “refused to allow [plaintiff to] attend the DCC hearing.”[3] (Mot. Default J. (DE 144) at 5, 9). The court already has concluded that defendant Gay did not violate the Eighth Amendment during the June 4, 2010, incident. (See Sept. 18, 2017, order (DE 141) at 21-23). Plaintiff's due process and confiscation of property claims against Gay were not alleged in his amended complaint and thus are not part of this action.

         Accordingly, the motion for default judgment is DENIED, and on the same basis, pursuant to Rule 54(f)(1), the court now grants summary judgment in favor of defendants Person and Gay.

         B. Motion for Reconsideration

         Plaintiff moves for reconsideration of the court's September 18, 2017, order, pursuant to Federal Rule of Civil Procedure 59(e). Rule 59(e), however, is only applicable to motions to alter or amend a final judgment. Fed.R.Civ.P. 59(e); Fayetteville Inv'rs v. Commercial Builders, Inc., 936 F.2d 1462, 1469-70 (4th Cir. 1991). Because the court's summary judgment order did not dispose of all the claims in this matter, and did not result in entry of final judgment, Rule 59(e) is inapplicable. Instead, motions for ...


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