Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bullard v. Peppers

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

February 21, 2019



          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on defendant's motion for summary judgment (DE 27), filed pursuant to Federal Rule of Civil Procedure 56. The motion was fully briefed and thus the issues raised are ripe for decision. For the reasons stated below, the motion is granted.


         On September 15, 2016, plaintiff, a state inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges defendant used excessive force against him in violation of the Eighth Amendment, and seeks compensatory and punitive damages, and a declaration that defendant violated plaintiff's Eighth Amendment rights. On February 27, 2017, the court conducted a frivolity review of plaintiff's complaint, and allowed the matter to proceed. Defendant filed answer on June 29, 2017, denying plaintiff's claim and asserting various affirmative defenses. On July 27, 2017, the court entered case management order governing discovery and dispositive motions practice. The parties completed discovery on or about December 5, 2017.

         On April 3, 2018, defendant filed the instant motion for summary judgment. In support of the motion, defendant filed memorandum of law, statement of material facts, and appendix. Defendant's appendix included affidavits from defendant and third-party witnesses Ricky Braswell, Mildred G. Prado, Carmeka Lee, Bret D. Murphy, and Christopher Wichtl; diagrams of the therapy room where the use of force incident took place; North Carolina Department of Public Safety (“DPS”) policy and procedures governing the Maximum Control status and Use of Force; plaintiff's disciplinary history; records from disciplinary proceedings and incident reports related to the use of force incident; office of special investigations report, video recording of the incident; and plaintiff's medical and mental health treatment records for May 5 and May 6, 2016. On April 9, 2018, defendant filed amended memorandum of law, amended statement of material facts, and supplemental appendix to statement of material facts. Defendant's supplemental appendix provided supplemental affidavit of Ricky Braswell, which was not completed at the time defendant filed the instant motion, and the amended memorandum and amended statement of material facts incorporated the supplemental Braswell affidavit.

         Plaintiff filed opposition to the instant motion on April 30, 2018. In support of his opposition, plaintiff filed memorandum of law, response to defendant's amended statement of material facts, and appendix. Plaintiff's appendix included affidavit from plaintiff, statement by third-party witness David Locklear, office of special investigations report, plaintiff's mental health records, and various witness statements submitted by DPS employees concerning the incident. Defendant filed reply in support of the instant motion on May 14, 2018.


         The court recounts the facts in the light most favorable to plaintiff, except to the extent plaintiff's version of events is directly contradicted by the video evidence, authenticity of which has not been disputed. See Scott v. Harris, 550 U.S. 372, 380-81 (2007).

         During the relevant time frame, plaintiff was serving a state term of imprisonment at Central Prison located in Raleigh, North Carolina. (Def's Aff. (DE 29-1) ¶ 9). At some unidentified time before May 5, 2016, DPS designated plaintiff as Maximum Control status or “Mcon.” (Id.) As of May 5, 2016, DPS policy stated an inmate shall be placed on Mcon status if he “has been found guilty of a major disciplinary infraction involving an aggravated assault, active or passive participation in riot or mutiny, or seizing or holding a hostage or in any manner unlawfully detaining any person against their will.” (DPS Maximum Control Policy & Procedures § .0401(a) (DE 29-6)). Placement on Mcon status is reserved for the most violent and dangerous inmates in DPS custody, particularly those with a history of serious disciplinary infractions and inability to conform their behavior to DPS regulations. (Def's Aff. (DE 29-1) ¶¶ 10-13). As of May 5, 2016, plaintiff had incurred 75 disciplinary infractions, including disobeying orders, assault on staff by throwing liquids, threats to staff, lock tampering, possession of weapons and other contraband, self-injury, fire setting, and cell flooding. (Offender Pub. Info. (DE 29-8)). Plaintiff does not dispute that he committed the foregoing disciplinary offenses or that his placement on Mcon status was consistent with DPS policies and procedures.

         On May 5, 2016, plaintiff attended a group therapy session held on the mental health unit. (Compl. (DE 1) § IV; Def's Aff. (DE 29-1) ¶ 24). Plaintiff and inmates Jefferies, Blackwell, and Locklear were placed in handcuffs and leg restraints, and the restraints were padlocked to the table and floor. (Extraction Room Video[1] (DE 29-13) at 1:41:33; Def's Aff (DE 29-1) ¶¶ 25-26). As shown on the video recording, the group therapy leader, Carmeka Lee (“Lee”), temporarily left the room, leaving plaintiff and the other inmates unsupervised. (Group Therapy Room Video (DE 29- 13) at 1:41:55 - 1:42:42). At that time, plaintiff began manipulating his handcuffs, and successfully removed them. (Id. at 1:42:03 -:25). Plaintiff testified that he subsequently placed the handcuffs back on, fully locking them in place before Lee returned. (Pl's Resp. to Def.'s Statement of Material Facts (DE 37) ¶ 1). Lee then returned to the room, presumably continuing the therapy session.[2](Group Therapy Room Video (DE 29-13) at 1:42:45).

         A few minutes later, defendant entered the group therapy room, and began removing the padlocks from the restraints to escort the inmates out. (Id. at 1:44:47 - 1:47:30). Lee remained in the therapy room while defendant removed inmates Blackwell and Jefferies' handcuffs and leg restraints from the padlocks. (Id.) As defendant unshackled Jeffries, plaintiff made various comments directed toward defendant, including “[y]ou officers think y'all can do what y'all want.” (Def's Aff. (DE 29-1) ¶ 34). After unshackling Jefferies, defendant told him to step over to the counter while defendant unshackled plaintiff and inmate Locklear. (Id.)

         Defendant then began walking toward plaintiff. (Group Therapy Room Video (DE 29-13) at 1:47:28 -:34). At that time, Lee, Jefferies, and Locklear were still present in the room. (Id.) As defendant approached plaintiff, he observed that plaintiff had removed his handcuffs. (Def's Aff. (DE 29-1) ¶ 34; Group Therapy Room Video (DE 29-13) at 1:47:30 -:34). Plaintiff then stood up, lifted his unrestrained hands off the table, and clinched his left fist. (Group Therapy Room Video (DE 29-13) at 1:47:33 -:36). Plaintiff also can be seen yelling at defendant as defendant approached him. (Extraction Room Video (DE 29-13) at 1:47:33 -:36). Defendant then grabbed plaintiff by his left arm, maneuvered under it, placed his right arm around plaintiff's upper chest or neck area and left arm around his torso, and pulled him to the floor. (Group Therapy Room Video (DE 29-13) at 1:47:36 -:38). When defendant made these initial contacts, plaintiff grabbed defendant's left arm and wrapped his right arm around it, thereby resisting defendant's efforts to restrain him. (Extraction Room Video (DE 29-13) at 1:47:35 -:37).

         Plaintiff continued resisting defendant's efforts to restrain him after they fell to the floor. (Id. at 1:47:38 -:52). The video recording shows plaintiff actively squirming and rolling on the floor in an effort to escape defendant's hold. (Id.) Plaintiff testified that defendant struck him with a padlock shortly after they fell to the floor.[3] (Pl.'s Aff. (DE 38-1) at 2).[4] Defendant testified that plaintiff struck him with his right arm and grabbed at his face during the struggle, and plaintiff candidly admits that he “assaulted” defendant after they fell to the floor. (Def's Aff. (DE 29-1) ¶ 45; Pl.'s Aff. (DE 38-1) at 2).

         As plaintiff emphasizes, the video recording shows defendant striking plaintiff twice with his fist after plaintiff “assaulted” defendant. (Extraction Room Video (DE 29-13) at 1:47:47 -:52). Plaintiff additionally alleges defendant struck him a third time with his fist, although the video recording does not clearly show a third punch. (Pl.'s Resp. to Def's Statement of Material Facts (DE 37) ¶ 15).[5] The second punch on the video occurs at a moment when plaintiff was not actively resisting, and after defendant briefly looked up and saw additional corrections staff entering the therapy room. (Extraction Room Video (DE 29-13) at 1:47:47 -:52). Following the second ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.