United States District Court, W.D. North Carolina, Statesville Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Motion for Summary
Judgment by Defendants Hamilton, Harrington, and Nichols
[Doc. 31] and on Plaintiff's Motion to Compel Discovery
Plaintiff Arthur Lee Givens Bey, IV, a North Carolina inmate
currently incarcerated at Marion Correctional Institution in
Marion, North Carolina, filed this action on June 21, 2017,
pursuant to 42 U.S.C. § 1983. Plaintiff named the
following four Defendants, all identified as correctional
officers at Alexander Correctional Institution
(“Alexander CI”) at all relevant times: (1)
Robert Hamilton; (2) Christopher Nichols; (3) FNU Harrington;
and (4) FNU Murray.Plaintiff alleges that, on July 9, 2915,
Defendants used excessive force against Plaintiff in
violation of Plaintiff's Eighth Amendment rights while he
was incarcerated at Alexander CI. Plaintiff seeks
compensatory and punitive damages as well as declaratory
relief. [Doc. 1 at 20]. The Plaintiff's complaint
survived initial review under 28 U.S.C. § 1915(e)(2).
November 13, 2018, the Plaintiff filed the pending motion to
compel discovery seeking production of certain videographic
evidence by Defendants. [Doc. 30]. On December 3, 2018,
Defendants filed the pending summary judgment motion. [Doc.
31]. On December 6, 2018, this Court entered an Order
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), granting Petitioner fourteen days to respond to
the summary judgment motion. [Doc. 34]. After moving to
extend the response deadline, Plaintiff timely filed his
response to Defendants' motion. [Doc. 37]. On August 1,
2019, the Court, on its own motion, ordered the Defendants to
file videographic evidence they intended, but failed, to file
with the Court in support of their motion for summary
judgment. [Doc. 40]. Defendants thereafter submitted certain
videographic evidence. [Doc. 41].
Defendants' Summary Judgment Materials
support of the summary judgment motion, Defendants rely on
incident reports by various correctional officers and other
witnesses submitted following the incident, certain
videographic evidence, and other prison records and policies,
as well as on the affidavits of Defendants Raymond Hamilton,
Ashley Harrington, and Christopher Nichols. [See
Docs. 31-1 through 31-3]. Defendants' forecast of
evidence shows the following:
is currently serving a life sentence for first-degree murder.
He was convicted on November 21, 2014. He was taken into the
custody of the North Carolina Department of Public Safety on
November 24, 2014. He has been incarcerated at various
prisons since that time. On the date of the incident at
issue, Plaintiff was an inmate at Alexander Correctional
Institution (“Alexander CI”). [Doc. 31-1 at
¶ 9: Hamilton Aff.]. The Plaintiff was twice previously
incarcerated in the North Carolina prison system for assault
with a deadly weapon inflicting serious injury. [Doc. 31-1 at
39-40]. During his current incarceration, the Plaintiff has
been charged with and found guilty of nine (9) infarctions
ranging from profane language to possession of weapon.
[Id. at ¶ 8 (citing Doc. 31-1 at 42)]. Three of
these nine infarctions were related to the incident giving
rise to the Plaintiff's Complaint. [Id.].
day of the incident, July 9, 2019, Defendant Hamilton was a
captain at Alexander CI and the officer in charge of the
shift during the time of the incident. [Doc. 31-1 at ¶
11]. Defendant Harrington was a correctional sergeant
officer, [Doc. 31-3 at ¶ 4: Harrington Aff.], and
Defendant Nichols was a correctional lieutenant [Doc. 31-2 at
¶ 4: Nichols Aff.]. The incident is mostly simply
divided into two separate events, the use of pepper spray and
the use of full mechanical restraints. The Court takes these
events in turn.
The use of pepper spray.
approximately 7:57 a.m., Defendant Harrington and Nichols
were monitoring the flow of inmate traffic to and from the
Blue Unit to the dining hall for the breakfast meal. [Doc.
31-3 at ¶ 11(a)]. The Plaintiff made what sounded to
Defendant Harrington liked a threatening comment. The
Plaintiff stated, “I wish he would put his hands on
me.” [Id. at ¶ 11(b)]. Defendant
Harrington questioned the Plaintiff about what he said. The
Plaintiff immediately became loud and used profane and
threatening language. [Id. at ¶ 11(c)].
Defendant Harrington attempted to avoid further confrontation
by ordering the Plaintiff to remain calm and to return to his
cell. The Plaintiff did not respond to Defendant
Harrington's order. Defendant Nichols then ordered the
Plaintiff to return to his cell. [Id. at ¶
11(d)]. The Plaintiff started to move toward his cell, but
then stopped and used more profane and threatening language.
At that time, Defendant Nichols ordered the Plaintiff to get
against the wall and submit to restraints. [Id. at
¶ 11(e)]. The Plaintiff approached the wall as if he was
going to submit to restraints. [Id. at ¶
11(f)]. At this point, Defendant Harrington had a very
uncomfortable feeling about how the event was unfolding. He
believed the Plaintiff was attempting to draw Defendant
Nichols and himself closer to decrease the officers'
reactionary gap. [Id. at ¶ 11(g)]. At this
time, Defendant Harrington recalls that the Plaintiff
clenched his fists, began breathing heavily, and violently
turned toward Defendant Nichols, yelling “Fuck you
mother fucker. I'm not going to do shit. I'm going to
get your ass.” [Doc. 31-3 at ¶ 11(h)].
Nichols recalls that after he ordered the Plaintiff to get
against the wall and to submit to restraints, the Plaintiff
turned to the wall, but as he did so he clenched both fists.
[Doc. 31-2 at ¶ 11(h)]. Based on the threatening
language and body language, Defendant Nichols started to get
out his pepper spray. [Id. at ¶ 11(h)]. The
Plaintiff turned rapidly toward Defendant Nichols and yelled,
“I am not doing shit. It's on mother fucker.”
[Id. at ¶ 11(i)].
Harrington and Nichols maintained “proper
distance” between themselves and the Plaintiff and
continued to give him verbal commands to submit to
restraints. [Doc. 31-3 at ¶ 11(h); Doc. 31-2 at ¶
11(j)]. The Plaintiff refused and Defendant Nichols
administered pepper spray to the Plaintiff's facial area.
[Doc. 31-2 at ¶ 11(j)]. Defendant Harrington attempted
to use his pepper spray at this time, but his can
malfunctioned and no spray was emitted. [Doc. 31-3 at ¶
11(i)]. The Plaintiff then submitted to restraints. Defendant
Harrington applied the restraints behind the Plaintiff's
back while Defendant Nichols maintained control of the
Plaintiff. [Id. at ¶ 11(j); Doc. 31-2 at ¶
11(k)]. During the incident, the Plaintiff repeatedly
referred to his life sentence as a reason not to
“mess” with him because he had nothing to lose.
The Plaintiff told Defendants Harrington and Nichols to check
Plaintiff's history and that he (the Plaintiff) would get
one of them. [Doc. 31-2 at ¶ 11(1); Doc. 31-3 at ¶
the use of the pepper spray, neither Defendant Harrington nor
Defendant Nichols saw that Plaintiff was in distress or even
experiencing physical discomfort. The Plaintiff walked
normally to the shower area without any signs or symptoms of
physical injury. [Doc. 31-2 at ¶ 12; Doc. 31-3 at ¶
12]. Defendants contend the video of the Plaintiff being
escorted to the shower confirms the lack of distress.
[Id.]. Defendant Harrington had no further contact
or involvement with the Plaintiff related to this incident.
[Doc. 31-3 at ¶ 13]. Defendant Nichols began to escort
the Plaintiff to the shower area in the segregation unit
until Defendant Nichols was relieved by other correctional
staff. Defendant Nichols then returned to his post. [Doc.
31-2 at ¶ 11].
The use of full mechanical restraints.
Defendant Nichols sprayed the Plaintiff with pepper spray,
the Plaintiff was escorted to the shower area to be allowed
to decontaminate. The video of the Plaintiff being escorted
to the shower shows him walking easily, having no problems
with his eyes or nose, and not otherwise in distress. [Doc.
31-1 at ¶ 16]. The Plaintiff was allowed to enter the
shower area. Defendant asserts that, “[d]ue to privacy
concerns, there is no video of the shower area.” The
door to the shower area was locked and the Plaintiff was told
to put his hands through the slot so that his handcuffs could
be removed, and he could use the shower. The Plaintiff
refused to put his hands through the door. He remained
handcuffed and refused to decontaminate. [Id. at
point, the Plaintiff sat down against the shower wall and did
not respond to correctional staff. [Id. at ¶
18]. At or about 9:40 a.m. and out of the abundance of
caution and because of an earlier problem with an
unresponsive inmate, a Code Blue was called. Medical staff
attended to the Plaintiff and found nothing wrong.
[Id. at ¶¶ 19-20]. Further, based on
Sergeant Murray's report, Defendant Nichols ordered that
the Plaintiff be placed in full restraints and that he be
escorted to a segregation cell. [Id. at ¶ 20].
Based on Sergeant Murray's report of continued
noncompliance and threats, Defendant Hamilton approved
Defendant Nichols' order to employ the use of full
restraints. [Id. at ¶ 21]. The use of
restraints was done in compliance with the North Carolina
Department of Correction Use of Force Policy and Procedure
(“Use of Force Policy”) F.1504(h).
[Id.]. Subsection (h) provides
All inmates will have their hands restrained behind their
back before being removed from their cell. The use of
instruments of restraint, such as handcuffs, legcuffs, waist
chains, black boxes and soft restraints are used only with
approval by the facility head or designee.
(1) Instruments of restraint will be utilized only as a
precaution against escape during transfer, prevent self
injury or injury to officers or third parties, and/or for
medical or mental health reasons.
[Doc. 31-1 at 16]. Some of Plaintiff's personal property
was also removed, namely his pants and tennis shoes, which
was done in compliance with policy and for the correctional
goal of obtaining compliance. [Doc. 31-1 at ¶ 22].
Defendants do not indicate which policy this is.
at about 11:50 a.m., approximately two hours after the
application of full restraints, the restraints were removed
in a staged manner as set out in Section F.1504(g). First, at
11:50 a.m., the connecting chain was removed. Then, at 1:50
p.m., the leg restraints were removed.
at 3:50 p.m. the waist chain and handcuffs were removed. The
fourth component of the restraints, the handcuffs, were
removed early due to the Plaintiff's compliant attitude.
[Doc. 31-1 at ¶ 23 (citing Doc. 41-1 at 6)]. When
Defendant Hamilton's and Defendant Nichols' shift
ended at 5:00 p.m., the Plaintiff was not in any kind of
restraint. [Doc. 31-1 at ¶ 24].
After the incident.
Hamilton investigated the incident and drafted the incident
report (the “Incident Report”). [See
Doc. 41-1 at 9-12]. The Plaintiff refused to give a statement
regarding the incident to Defendant Hamilton. [Id.
at 10]. Defendant Hamilton concluded that the initial use of
force under the circumstances, namely the Plaintiff's
foul and threatening language, aggressive body language,
failure to obey orders, and the presence of eleven other
inmates, was “appropriate to achieve the correctional
goal of obtaining compliance and keeping staff and inmates
safe.” [Doc. 31-1 at ¶ 14]. Defendant Hamilton
believes the subsequent use of full restraints on the
Plaintiff was warranted to achieve a correctional goal.
Further, he believes the appropriate amount of force was used
to obtain the corrective objective. [Doc. 31-1 at ¶¶
was charged with and found guilty of three disciplinary
infractions for his conduct immediately preceding the use of
the pepper spray, including profane language, threatening to
harm or injure staff, and disobeying an order. [Doc. 31-1 at
¶ 31]. The Court, however, sees no evidence of
infractions issued in relation to any conduct preceding the
application of full mechanical restraints to Plaintiff.
Plaintiff's Summary ...