United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on defendants' motion for
summary judgment (DE 83), filed pursuant to Federal Rule 56.
This motion was fully briefed and thus the issues raised are
ripe for decision. For the reasons stated below,
defendants' motion is granted.
OF THE CASE
March 21, 2016, plaintiff, a state inmate proceeding pro se,
filed this civil rights action pursuant to 42 U.S.C. §
1983, alleging defendants used excessive force against him
during his arrest. His claims survived frivolity
review. However, because plaintiff named John Doe
defendants, the court directed him to amend his complaint to
properly identify these individuals. The court directed to
New Hanover County Attorney to assist plaintiff with this
Hanover County Attorney complied with this directive, but
plaintiff was still unable to identify the John Doe
defendants. Because he was unable to do so, plaintiff filed
several motions requesting additional discovery. The court
allowed these motions in part and denied them in part,
appointing North Carolina Prisoner Legal Services, Inc.
(“NCPLS”) for the limited purpose of assisting
plaintiff in identifying the John Doe defendants. With
NCPLS's assistance, plaintiff identified the John Doe
defendants as Detectives J. Pinney, Green, Barnes, and
Spencer. Plaintiff filed an amended complaint to reflect this
plaintiff filed defendants' discovery responses with the
court, apparently as argument in support of his claims, the
record clearly indicates defendants provided plaintiff with
ample discovery. Nonetheless, plaintiff filed numerous
motions seeking additional discovery, as well as another
motion to amend his complaint. The court denied these
filed the instant motion on March 13, 2018, accompanied by a
memorandum of law, statement of material facts, and appendix.
Defendants appendix includes affidavits from each defendant,
affidavit of third-party Jeffrey Rohena, and an exhibit
detailing the discharge of Pinney's taser.
response in opposition is accompanied by a memorandum of law,
statement of material facts, and appendix. Plaintiff's
appendix contains his own affidavit, police reports related to
plaintiff's arrest, a use of force report from the New
Hanover County Sheriff's Office, an exhibit detailing the
discharge of Pinney's taser, photographs and a hand drawn
map of the neighborhood where plaintiff's arrest
occurred, the New Hanover County Sheriff's Office's
use of force policy, correspondence from NCPLS, a newspaper
article covering plaintiff's arrest, and a return of
service on the search warrant executed during plaintiff's
arrest. Defendants filed a reply, and plaintiff filed a
OF THE FACTS
facts viewed in the light most favorable to plaintiff may be
summarized as follows. On July 16, 2013, Rohena and Green
intercepted a package at a FedEx Express in Wilmington, North
Carolina, believing it to contain contraband. (Rohena Aff.
(DE 86-1) ¶¶ 5-6). The package was addressed to
Travis Angel at 905 N. 5th Street in Wilmington.
(Id. ¶ 7). A subsequent canine search indicated
the package contained narcotics. (Id. ¶ 8).
Rohena then obtained a warrant to search the package.
(Id. ¶ 9). The package contained 36.5 ounces of
heroin. (Id.). Rohena and Green placed a monitored
GPS and light sensor in the package and then re-sealed it.
(Id. ¶ 10). Rohena then obtained an
anticipatory search warrant for 905 N. 5th Street.
(Id. ¶ 11).
obtaining the anticipatory search warrant, Rohena requested
assistance from other detectives for conducting a controlled
delivery of the package and in executing the anticipatory
search warrant. (Id. ¶ 11). The detectives
planned for Rohena to pose as a FedEx employee and deliver
the package to Angel, while the other detectives secured the
premises and detained any occupants. (Id.
drove a delivery van to 905 N. 5th Street with Green hidden
in the back. (Id. ¶ 15). Barnes, Pinney, and
Spencer established surveillance approximately one block
away. (Spencer Aff. (DE 86-4) ¶ 6. Additional detectives
took up positions at other nearby locations. (Rohena Aff. (DE
86-1) ¶ 15).
Rohena arrived at 905 N. 5th Street, he observed Angel and
Rebecca Maxwell sitting on the front porch. (Id.
¶ 16). Green remained hidden in the van, listening in
through a muted cellular phone. (Green Aff. (DE 86-2) ¶
18). Rohena delivered the package to Angel, who took
possession of it and took it inside the residence. (Rohena
Aff. (DE 86-1) ¶ 17). Maxwell followed behind him.
(Id.). Rohena then returned to the van, and notified
the other detectives that the package had been delivered,
accepted, and taken inside the residence. (Id.
¶ 18). Rohena then drove around the block, and parked in
a discrete location to continue surveillance of the
residence. (Id. ¶ 19).
two minutes later, plaintiff and his son entered the
residence. (Id. ¶ 20). A few seconds later, the
GPS sensor indicated that the package was moving towards the
rear of the residence. (Id. ¶ 21). Rohena then
gave the order to execute the search warrant. (Id.
and other detectives entered the front door, performed a
protective sweep, and then detained Angel, Maxwell, and
plaintiff's son. (Id. ¶¶ 24-25).
Meanwhile, other detectives, including all four defendants,
flanked either side of the residence and proceeded to the
backyard. (Id. ¶ 24). When the detectives
arrived in the backyard, they saw plaintiff standing near a
shed. (Green Aff. (DE 86-2) ¶ 24). Plaintiff was holding
the heroin package under his left arm, and appeared to be
trying to unlock the door to the shed. (Id.). The
detectives identified themselves, and then ordered plaintiff
to get down on the ground and show them his hands.
(Id. ¶ 25). Plaintiff dropped the heroin
package but did not comply with the detectives' orders.
(Id. ¶¶ 25-27). The detectives approached,