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Perdue v. Harrison

United States District Court, M.D. North Carolina

April 23, 2018

BOBBY JOHNATHAN PERDUE, II, Plaintiff,
v.
TITUS HARRISON, Defendant.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States Magistrate Judge.

         This case comes before the undersigned United States Magistrate Judge for a recommendation on “Defendant's Motion for Summary Judgment” (Docket Entry 25) (the “Motion”). For the reasons that follow, the Court should grant the Motion.

         FACTUAL AND PROCEDURAL HISTORY

         Bobby Johnathan Perdue, II (the “Plaintiff”), a pretrial detainee proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 against Titus Harrison (the “Defendant”) in his individual and official capacities, alleging that Defendant used excessive force against Plaintiff in violation of his fourteenth-amendment rights. (See Docket Entry 2 (the “Complaint”) at 5.)[1]According to the Complaint:

         On April 23, 2017, Defendant, a sergeant with the Rockingham County Sheriff's Department, conducted a search of Plaintiff's cell at the Rockingham County Detention Center. (See Docket Entry 2 at 4.) Upon finding contraband, Defendant ordered Plaintiff and his cell-mate to pack their belongings, and escorted them to segregation. (See id.) On the way, Plaintiff and Defendant engaged in a heated exchange. (See id. at 9.) Thereafter, Defendant ordered Plaintiff to enter an area closed off from other officers and beat him, resulting in injuries requiring medical attention. (See id. at 5, 9-10.)

         Defendant moved to dismiss the Complaint on immunity grounds and for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (See Docket Entry 15 at 5-11.)

         The undersigned recommended granting Defendant's dismissal motion as to the official capacity claim, but denial in all other respects. (See Docket Entry 23 at 16.)[2] Rather than objecting to the recommendation, Defendant moved for summary judgment (see Docket Entry 25), which Plaintiff opposes (see Docket Entry 30).

         In regard to the Motion, Defendant primarily contends that his actions toward Plaintiff did not constitute excessive force. (See Docket Entry 26 at 7-11.)[3] As supporting evidence, Defendant presents affidavits from himself and three other officers present at the scene of the events at issue, as well as “Use of Force Reports” prepared directly after the incident. (See Docket Entry 25 at 4-23.) Defendant also provided a surveillance camera recording of the incident accompanied by an affidavit from the custodian of the video surveillance tapes at the Rockingham County Detention Center. (See id. at 36.) Plaintiff submitted an unverified response contesting many of the facts set out in Defendant's affidavits. (See Docket Entry 30 (the “Response”).) However, Plaintiff did not file any affidavits or other verified statements of his own. (See Docket Entries dated May 3, 2017, to present.)

         According to Defendant's affidavit:

         Plaintiff's cell first drew his attention when he “noticed that the vents in Plaintiff's cell (G-113) were covered as against jail policy.” (Docket Entry 25 at 4.) Defendant subsequently began a search of Plaintiff's cell after noticing “non-issued jumpsuits and excess linens in the corner of the cell constituting contraband and as against jail policy.” (Id.) “Upon entering, [Defendant] saw additional contraband items, ” and, after having them removed, “asked Plaintiff and his cellmate if they had anything else they were not supposed to have.” (Id. at 5.) After neither one responded, Defendant asked Plaintiff's cellmate, seated on the bottom bunk, to stand up. (Id.) Defendant lifted the mattress and found “five non-identifiable pills. At that point, [Defendant] asked them both to step out of the cell so that a cell search could be performed.” (Id.) Defendant radioed other officers for assistance and Officer McCollum responded and escorted Plaintiff and his cellmate to Booking. (See id.)

         Defendant then “determined that Plaintiff and his cellmate needed to be relocated to separate cells to await ‘reclassification' as a result of the search findings.” (Id. at 6.) Defendant asked Officers McCollum and Snyder “to take the Plaintiff and his cellmate back to their original cell to pack their belongings so that they could be relocated to H-Pod housing.” (Id.) When Defendant entered the hallway (“sally port”) between the pod housing units to “check on the progress [of] the cell relocation of Plaintiff and his cellmate, ” he saw Plaintiff and the other officers enter the sally port. (Id.) “Plaintiff was cursing and kicked the G-Pod exit door. He also made comments about [Defendant's] wife and continued to act irate.” (Id.) Upon entering the H-Pod, Defendant assigned Plaintiff a cell on the bottom level. (See id.) That cell “is one of three cells located behind a glass partition. The block of three cells is separated from the glass partition by a short hallway known as the ‘bubble.'” (Id.)

         Plaintiff and Defendant then entered the bubble, and Defendant

instructed Plaintiff to go to cell H-108, which was on the far left side of the cell block. Instead Plaintiff went to the right and turned around to face [Defendant] while holding his box of belongings. He continued to state ‘I am not going in there' and again asked ‘why do I have to go in there?' several more times. Plaintiff then shoved [Defendant] in the abdomen with [Plaintiff's] property box. [Plaintiff] then put his box down without being instructed to do so. Immediately upon rising, Plaintiff said ‘I'm not trying to hear you!' and closed the space between [them] with closed fists and a challenging look in his eye. At that point, [Defendant]'s training indicators suggested that Plaintiff was about to become assaultive towards [Defendant] based on [Plaintiff's] body language, failure to follow instructions, and discontinued communication. [Defendant] braced himself for an attack. Then, [Defendant] executed a ‘bear hug' around Plaintiff's upper body while cradling his right arm against [Defendant's] body and [Plaintiff's] head in the crook of [Defendant's] elbow to prevent him from being further injured as [Defendant] placed him on the floor.

(Id. at 7 (footnote omitted).) “At no point, did Defendant strike or choke [P]laintiff while restraining him and taking him to the ground.” (Id.) Thereafter, “the other detention officers immediately came into the bubble to take over control of Plaintiff by placing him in handcuffs” and escorting him to Booking. (Id.) “Plaintiff was placed in a holding cell in Booking at that time. [Defendant] asked [Plaintiff] through the holding cell door if he was ‘ok' and he responded ...


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