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Caballero v. Boney

United States District Court, W.D. North Carolina, Charlotte Division

June 28, 2019

ALFONZO CABALLERO, Plaintiff,
v.
PHILLIP BONEY, et al., Defendants.

          ORDER

          Frank D. Whitney, Chief United States District Judge

         THIS MATTER comes before the Court on Defendants FNU Holder and FNU Smith's Motion for Summary Judgment, (Doc. No. 43). Also pending is Plaintiff's “Request for Review the 3 Videos, ” (Doc. No. 52), which has been docketed as a motion.[1]

         I. BACKGROUND

         Pro se Plaintiff's Complaint passed initial review on excessive for and discrimination claims for incidents that allegedly occurred at the Lanesboro Correctional Institution. (Doc. No. 14). However, Plaintiff voluntarily dismissed all the claims except for the claims against Defendants Holder and Smith. See (Doc. No. 33). Defendants Holder and Smith have filed a Motion for Summary Judgment, (Doc. No. 43), that is presently pending before the Court. Plaintiff has filed a Response and Defendants had the opportunity to reply. Plaintiff has also filed a “Request for Review the 3 Videos” that appears to be in the nature of an additional Response and appears to ask the Court to appoint counsel to assist him in this case. (Doc. No. 52).

         (1)Complaint (Doc. No. 1)

         Plaintiff alleges that he was being escorted to the rec yard in handcuffs when Officer Smith called him a “wetback m…. f….r Mexican, ” threw him to the floor, placed his knee on Plaintiff's back, held his head still, and beat him by hitting various parts of his body. (Doc. No. 1 at 4). Officers including Defendants Holder and Smith joined in the beating. Plaintiff was not a threat to the officers and did not resist. The beating was an act of retaliation and occurred after a long history of harassment, bias, racial slurs, threats, intimidation, and prejudice toward Mexicans. Plaintiff sustained fractures to his right hand, one foot, and shoulder, and injuries to his left hand, arms, head, and face. He has problems walking due to these injuries. Plaintiff seeks punitive damages of $50, 000 from each Defendant.

         (2) Defendants' Motion for Summary Judgment (Doc. No. 43)

         Defendants argue that they are entitled summary judgment because Plaintiff failed to exhaust administrative remedies before filing this suit as required by the Prison Litigation Reform Act (“PLRA”). Plaintiff was fully aware of the administrative remedy procedure process because it is part of inmate orientation, it is explained orally to each inmate, and Plaintiff has exhausted several other grievances but failed to do so for the alleged use of excessive force incident at issue. The three grievances that Plaintiff has filed in support of exhaustion fail to satisfy the PLRA's exhaustion requirements.

         Further, the objective evidence demonstrates that there is no genuine dispute of material fact that would support Plaintiff's allegation of excessive force. Plaintiff's self-serving allegations lack support and credibility and should be rejected. Plaintiff's claims that he was not doing anything wrong, that he posed no threat to anyone, that Officer Smith instigated the incident based on racial animus, and that other officers then joined in the beating, are contradicted by the objective evidence. Plaintiff escaped from his handcuffs so that he could attack another inmate, Officer Smith was no part of the escort and was not in the room where the incident began and thus could not have instigated it, the video reveals that Plaintiff was not beaten while he was on the ground, Plaintiff's various descriptions of the incident are contradictory, and the officers' use of force was reasonable to accomplish the goad of controlling Plaintiff and preventing him from harming anyone else.

         Defendants argue that they are entitled to qualified immunity because no constitutional violation occurred and, even if a violation did occur it was not clearly established. Finally, Plaintiff is not entitled to punitive damages because no evidence exists of aggravated conduct that would support punitive damages.

         (3) Plaintiff's Response (Doc. No. 50)[2]

         Plaintiff was informed of the importance of responding to Defendants' motion as well as the legal standard applicable to summary judgment motions. See (Doc. No. 47).

         Plaintiff filed an unverified Letter in Spanish that was postmarked June 3, 2019, with several hand-annotated documents attached. His Letter, which will be treated as a Response, states:

I received these papers from the attorneys of defendants Holder and Smith, they are lying regarding the facts I am sending the statements they made were the committed mistakes the prisoner Alarcon was Never escorted towards the recreation by officer Turnumire he was escorted by a female officer “Tillman” and 1 am requesting the videos there were 2 cameras inside the block and 2 in the hallways, and I never resisted, they are lying in their different statements and they are covering up their actions for each other. Officer Smith did use force with violence and was uttering racist comments while they were handling me they were in control the whole time. One of the statements doesn't have the date. First they charged me with an A-1 and B1. The second a A-99 and B1.

(Doc. No. 50).

         (4) Defendants' Reply (Doc. No. 51)

         Defendants filed a Notice of Intent Not to File a Reply.

         (5) Evidence[3]

         (A) Affidavit of William Rogers (Doc. No. 45-1)

         Rogers is Assistant Superintendent of Custody and Operations at Lanesboro C.I. He is responsible for the custody and control of Incident Reports, and the statements, videos, and documents attached to those Incident Reports.

         As a result of the June 12, 2015 incident in which Plaintiff attempted to attack another inmate, Incident Report 4865-15-341 was created by staff members at Lanesboro C.I. The Incident Report and supporting statements and videos are records that were made immediately following the incident, kept in the course of the regularly conducted business of NCDPS, and it is a regular practice of NCDPS to create and maintain these documents pursuant to NCDPS Policy and Procedures.

         (B) Affidavit of Johnathan Holder (Doc. No. 45-3)

         Defendant Holder is a Correctional Sergeant and was assigned to Anson Unit on June 12, 2015. The Anson Unit is a restrictive housing unit in which inmates are assigned to individual cells based on disciplinary or safety concerns. The inmates remain in their cells except for approximately one hour per day when they are escorted to indoor or outdoor recreation.

         On June 12, 2015 at approximately 9:04 AM, Defendant Holder responded to an emergency code in the nearby hallway. In the video of the incident (Anson Hallway to E.F.G.), Holder can be seen running towards Officer Bruce, Officer Smith, and Plaintiff from the doorway on the right at 9:04:10. By the time Defendant Holder reached the area, the other staff members had already disarmed Plaintiff and placed him on the floor to gain complete control over him. Defendant Holder did not engage in any use of force with Plaintiff.

         After Plaintiff was fully restrained, Defendant Holder walked behind the escort and can be seen on the video waiting off to the side against the wall on the left at 9:06:45 wearing a black short-sleeved shirt and black gloves. Defendant Holder then followed the group to the adjoining corridor.

         At 9:26:00, Unit Manager Ingram and Defendant Holder removed Plaintiff from the hallway holding cell and took him back to the Nurse's Station. Unit Manager Ingram and Defendant Holder stayed with Plaintiff while he was seen by the Unit Nurse. They then escorted Plaintiff to the farthest hallway holding cell where they conducted a strip search to ensure Plaintiff was not concealing any other weapons or contraband. The search was conducted without incident. Afterwards, Plaintiff got dressed and they escorted him back to the Nurse's Station without incident. Unit Manager Ingram and Defendant Holder then escorted Plaintiff back to a cell without incident.

         Defendant Holder had no further interactions with Plaintiff. At no point during the incident did Defendant Holder use any force on Plaintiff. At no point during the incident did Defendant Holder observe any other staff member punch or kick Plaintiff, or otherwise engage in any unlawful use of force against him.

         (C) Affidavit of Anthony K. Smith (Doc. No. 45-4)

         Defendant Smith is a Correctional Officer at Lanesboro and was assigned to the Anson Unit on June 12, 2015. At approximately 9:00 AM, Correctional Officer Raylene Bruce was escorting Plaintiff from his cell to outside recreation. At the same time, Correctional Officer Jonathan Turnmire was escorting Inmate Alacron from his cell to outside recreation. Defendant Smith was in the hallway bathroom when he heard shouts from the hallway.

         In the video of the incident, Defendant Smith can be seen emerging from the hallway bathroom at 9:03:47. Defendant Smith responded to Officer Bruce to help her with Plaintiff who continued to resist her efforts to control and restrain him. Defendant Smith observed that Plaintiff had pulled one of his hands free from his handcuffs and was holding a handmade knife or shank. As Defendant Smith approached Plaintiff, Defendant Smith wrapped his arms around Plaintiff's upper body to keep him from attacking Smith or any of the responding officers. Another responding officer was able to disarm Plaintiff, then they placed him on the ground pursuant to training and NCDPS policy in order to better control him and place full restraints on him.

         After he was fully restrained, Defendant Smith was part of the escort that picked Plaintiff up and carried him to the Nurse's Station so that he could be evaluated by medical staff. In the video, Defendant Smith can be seen holding Plaintiff's upper body by ...


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