United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
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.
OF THE CASE
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.
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
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.
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).
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.
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 (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.(Group Therapy Room Video (DE
29-13) at 1:42:45).
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.)
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).
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. (Pl.'s Aff. (DE 38-1) at
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).
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). 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 ...