United States District Court, E.D. North Carolina, Western Division
DANIEL B. PARSONS, Plaintiff,
KELVIN ANDREWS, JOHN HERRING, DENNIS DANIELS, and JILLIAN FITCH, Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
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”) (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). 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.
OF THE CASE
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.
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. 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.
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 and allowed the matter to proceed. On
January 30, 2018, the court granted defendant Greene
County's motion to dismiss.
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.
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.
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.
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.
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
OF THE FACTS
facts viewed in the light most favorable to plaintiff may be
summarized as follows.
Incident with defendant Andrews
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; see also Daniels Aff. (DE 156-1)
to a DPS incident report,  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
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).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).
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).
Moving Defendants' Evidence
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). 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.).
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
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.
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)).
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 ...