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Parsons v. Andrews

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

March 29, 2019




         This matter is before the court on motion for summary judgment by defendants John Herring (“Herring”), Dennis Daniels (“Daniels”), and Jillian Fitch (“Fitch”) (together, “moving defendants”)[2] (DE 154), and the following motions filed by plaintiff: 1) to seal correspondence from plaintiff's counsel (DE 153); 2) to unseal same correspondence (DE 160); 3) to “prove” (DE 179); and 4) for summary judgment (DE 185).[3] Moving defendants' motion for summary judgment has been fully briefed, and defendants did not file responses to the remaining motions. In this posture, the issues raised are ripe for decision. For the following reasons, the court grants moving defendants' motion for summary judgment and plaintiff's motion to seal, and denies the remaining motions.


         On May 23, 2013, plaintiff, a state inmate proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983 alleging defendant Kelvin Andrews (“Andrews”), a corrections officer, sexually assaulted him at Maury Correctional Institution (“Maury C.I.”). Plaintiff also asserts that moving defendants, who are the superintendent, assistant superintendent, and psychologist at Maury C.I., failed to protect him from sexual assaults by other inmates. Plaintiff seeks compensatory and punitive damages, and injunctive relief.

         On October 11, 2013, plaintiff filed a motion to appoint counsel. On January 8, 2014, the court conducted its frivolity review of plaintiff's complaint, allowed the matter to proceed, and denied plaintiff's motion to appoint counsel.[4] On March 2, 2016, the court stayed the action pending investigation by the North Carolina State Bureau of Investigation (“SBI”) into plaintiff's allegations. On April 5, 2017, the court lifted the stay and directed North Carolina Prisoner Legal Services (“NCPLS”) to notify the court as to whether it would represent plaintiff in the action and file amended complaint on plaintiff's behalf. On June 22, 2017, NCPLS notified the court that they were unable to provide plaintiff with representation in this matter. On July 7, 2017, NCPLS filed notice that they were unable to file an amended complaint on plaintiff's behalf.[5]

         On July 17, 2017, plaintiff filed amended complaint, naming Andrews, Herring, Daniels, Fitch, and Greene County as defendants. On August 14, 2017, the court conducted its frivolity review of the complaint[6] and allowed the matter to proceed. On January 30, 2018, the court granted defendant Greene County's motion to dismiss.

         The January 30, 2018, order also appointed NCPLS to represent plaintiff during discovery, pursuant to Standing Order 17-SO-03. The parties completed discovery on or about July 8, 2018. After discovery closed, NCPLS filed response to the court's January 30, 2018, order, stating that it assisted plaintiff with discovery in this matter, and that, in NCPLS's view, further appointment of counsel is not required in this action. The court granted NCPLS's motion to withdraw from representation on July 11, 2018.

         On July 23, 2018, plaintiff filed confidential correspondence he received from NCPLS describing results of the SBI investigation and relating certain privileged information. The court temporarily sealed the correspondence, and requested that either plaintiff or NCPLS file motion to seal if either believed the correspondence should be sealed. NCPLS filed the instant motion to seal on August 15, 2018. Plaintiff, acting pro se, filed the instant motion to unseal the correspondence on August 24, 2018.

         In the interim, moving defendants filed the instant motion for summary judgment on August 16, 2018, arguing the record evidence establishes they did not fail to protect plaintiff from assaults. In support of the motion, moving defendants filed memorandum of law, statement of material facts, and appendix. The appendix included moving defendants' affidavits, plaintiff's disciplinary records, Department of Public Safety (“DPS”) investigatory records related to plaintiff's sexual assault allegations, pertinent DPS guidance related to Gender Identity Disorder, and plaintiff's requests for removal from protective housing. Plaintiff filed numerous responses to moving defendants' motion for summary judgment, and also renewed his requests for appointment of counsel.

         On August 24, 2018, the court entered ordered denying plaintiff's requests for counsel, but directed defendants to provide plaintiff with access to the full SBI investigation report related to plaintiff's allegations. Defendants filed notice of compliance with the order on October 23, 2018.

         On December 26, 2018, plaintiff filed the instant motion to prove. On March 8, 2019, plaintiff filed the instant motion for summary judgment. Defendants did not file responses to either motion.[7]


         The facts viewed in the light most favorable to plaintiff may be summarized as follows.

         A. Incident with defendant Andrews

         During the relevant time frame, plaintiff was serving a state term of imprisonment at the Maury C.I. (Daniels Aff. (DE 156-1) ¶ 8). Plaintiff informed DPS officials in March 2013 that he had been sexually assaulted on February 18 and February 19, 2013, by defendant Andrews. (Incident Report (DE 161-1) at 3[8]; see also Daniels Aff. (DE 156-1) ¶¶ 30-31).

         According to a DPS incident report, [9] plaintiff reported that on February 18, 2013, defendant Andrews approached plaintiff as he was shaving his legs, and requested that he expose himself to defendant Andrews. (Incident Report (DE 161-1) at 7). Plaintiff complied by removing the blind to his cell, and showing defendant Andrews his partially-nude body. (Id.). At approximately 4:50 p.m. that same day, plaintiff was stocking supplies in a break room when defendant Andrews entered. (Id.). Defendant Andrews allegedly groped plaintiff, and attempted to perform oral sex on him. (Id. at 6-7). Defendant Andrews then allegedly instructed plaintiff to perform oral sex on him, and plaintiff complied. (Id. at 6). According to the incident report, DPS video footage shows plaintiff and defendant Andrews enter a staff break room at approximately 4:51 p.m. on February 18, 2018. (Id. at 3). Approximately six minutes later, they exit the break room together. (Id.)

         According to the same incident report, on February 19, 2013, defendant Andrews allegedly stopped plaintiff as he was returning to his cell from breakfast, and instructed him to assist with cleaning the “F-POD” of the prison. (Id.) When they entered the F-POD stairwell, defendant Andrews allegedly assaulted plaintiff by attempting to perform oral sex on plaintiff, and instructing plaintiff to perform oral sex on him. (Id.). Defendant Andrews allegedly released pre-ejaculate into plaintiff's mouth. (Id.) Plaintiff did not drink water or swallow, and instead spit the pre-ejaculate into a plastic bag and mailed it to his brother on February 20, 2013. (Id.) According to the incident reports, DPS video shows plaintiff and defendant Andrews enter the F-Pod stairwell together, and they were off camera approximately three times, between 5 and 10 minutes each time. (Id. at 2-3).[10]Plaintiff's shirt was tucked into his pants when he entered the F-POD, but was untucked when he left the stairwell. (See id. at 6).

         According to the incident report, plaintiff also reported that he met defendant Andrews and non-party “Ms. Washington” in a staff office on February 22, 2013. (Id.). When Ms. Washington left the office, defendant Andrews allegedly stated the encounters were consensual and threatened to “mess up” plaintiff. (Id.). On March 1, 2013, plaintiff requested protective custody while DPS officials investigated plaintiff's allegations. (Id. at 3, 6).

         B. Moving Defendants' Evidence

         On May 2, 2012, plaintiff reported that he was tired of having sexual relationships with certain inmates on the Green Unit at Maury C.I. and requested protective custody. (Daniels Aff. (DE 156-1) ¶ 17).[11] DPS officials placed plaintiff in administrative segregation pending the investigation. (Id. ¶¶ 17-18). At the conclusion of the investigation, DPS officials concluded plaintiff had not been sexually assaulted by another inmate, and that any sexual relationships had been consensual. (Id. ¶ 18). Nevertheless, DPS still transferred plaintiff to the Blue Unit, as he requested. (Id.).

         On May 23, 2012, plaintiff was found back on the Green Unit, where he did not belong. (Id. ¶ 19). DPS officials ordered him to leave, and plaintiff responded by threatening the officers that he would accuse them of rape. (Id.). DPS officials subsequently charged plaintiff with various disciplinary infractions arising out of this incident. (Id.).

         In July 2012, plaintiff lodged complaints about corrections officer Conner, including that she was having inappropriate sexual relationships with inmates. (Id. ¶¶ 20-23). Plaintiff also alleged that he was in fear for his safety because officer Conner wanted other inmates to harm plaintiff because she was jealous of him, and that an inmate had attempted to stab him with a pen. (Id.). Plaintiff was placed in administrative segregation during the ensuing investigation. (Id.). DPS officials initiated an investigation, and determined the allegations were unfounded or could not be substantiated. (Id. ¶¶ 21-23).

         During the course of the investigation into the July 2012 allegations, plaintiff reported that he had been raped by an inmate four months earlier, in March 2012. (Id. ¶ 24). Plaintiff had not previously reported the inmate had raped him, despite reporting the inmate for other misconduct. (Id.). DPS officials completed an investigation pursuant to the Prison Rape Elimination Act (“PREA”), but determined the allegations could not be substantiated. DPS officials noted the alleged perpetrator denied the allegations after interview, there was no physical evidence of sexual assault, and that plaintiff previously had failed to report the abuse despite filing other complaints about the same inmate. (Id.; see also Ex. F, Daniels Aff. (DE 156-7)).

         On December 11, 2012, plaintiff alleged he was sexually assaulted in his cell by another inmate. (Daniels Aff. (DE 156-1) ¶ 25). Plaintiff was placed in administrative segregation while DPS investigated the allegations. (Id.). During the investigation, the alleged perpetrator denied assaulting plaintiff, no third-party witnesses could confirm the assault, and plaintiff's medical examination revealed no physical evidence of sexual assault. (Id.). DPS officials thus ...

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