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Givens Bey v. Murray

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

August 21, 2019

ARTHUR LEE GIVENS BEY, Plaintiff,
v.
FNU MURRAY, et al., Defendants.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS 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 [Doc. 30].

         I. BACKGROUND

         A. Procedural Background

         Pro se 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.[1]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). [Doc. 9].

         On 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].

         B. Factual Background

         1. Defendants' Summary Judgment Materials

         In 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:

         Plaintiff 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.].

         On the 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.

         a. The use of pepper spray.

         At 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)].

         Defendant 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)].

         Defendants 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 ¶ 11(k)].

         After 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].

         b. The use of full mechanical restraints.

         After 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 ¶ 17].

         At some 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.

         Beginning 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.

         Finally, 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].

         c. After the incident.

         Defendant 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.[2] [Doc. 31-1 at ¶¶ 28, 30].

         Plaintiff 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.

         2. Plaintiff's Summary ...


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