United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on defendants' motions for
summary judgment (DE 43, 48) pursuant to Federal Rule of
Civil Procedure 56, and motion for requests for admissions to
be deemed admitted, for leave to amend dispositive motions,
or for other alternative relief (DE 47), by defendant Jason
McNeil (“McNeil”). Plaintiff did not respond to
the motions. For the reasons that follow, the court grants
the motions for summary judgment and denies as moot defendant
OF THE CASE
a state inmate proceeding pro se, commenced this action by
filing complaint in the Superior Court of Robeson County on
January 11, 2017, alleging claims for violations of his civil
rights pursuant to 42 U.S.C. § 1983. Plaintiff alleges
defendant Jason McNeil (“McNeil”), an employee
with the City of Lumberton, sexually assaulted him when
plaintiff was participating in an inmate work release
program. Plaintiff seeks compensatory and punitive damages.
March 29, 2017, defendants removed the action to this court,
on the basis of 28 U.S.C. § 1441(a). On April 7 and 14,
2017, plaintiff filed motions to appoint counsel. On April
24, 2017, defendant City of Lumberton filed motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). On
April 28, 2017, the court entered order denying
plaintiff's motions to appoint counsel. On May 10, 2017,
plaintiff filed motion to amend complaint. Defendant McNeil
filed Rule 12(b)(6) motion to dismiss on August 28, 2017.
February 28, 2018, the court entered order granting
plaintiff's motion to amend complaint and denying
defendants' motions to dismiss as moot. On May 11, 2018,
the court entered case management order governing discovery
and pretrial dispositive motions practice. The parties
completed discovery on or about September 18, 2018.
December 3, 2018, defendant McNeil filed the instant motion
for summary judgment, arguing the undisputed record evidence
establishes he did not act under color of state law during
his sexual encounter with plaintiff and thus plaintiff cannot
establish a claim under § 1983. In support, defendant
McNeil relies upon a memorandum of law, statement of material
facts, and the following: 1) affidavit of Charles Edward
Evans (“Evans”), an employee of the City of
Lumberton; and 2) affidavit of David Williford
(“Williford”), a detective with the City of
Lumberton Police Department. That same day, defendant McNeil
filed the instant motion for requests for admission to be
deemed admitted, for leave to file amended dispositive
motions, or for other alternative relief.
December 3, 2018, defendant City of Lumberton filed the
instant motion for summary judgment, arguing plaintiff has
failed to establish a viable constitutional claim for
municipal liability. In support, defendant City of Lumberton
relies upon a memorandum of law, statement of material facts,
and the following: 1) Evans's and Williford's
affidavits (the same affidavits submitted in support of
defendant McNeil's instant motion); 2) Evans's
official job description; and 3) a Lumberton Police
Department investigation report, dated July 8, 2015.
December 4, 2018, pursuant to Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975), the court provided plaintiff
notice of his right to respond to defendants' motions.
Plaintiff, however, did not file responses to any of the
OF THE FACTS
2015, plaintiff was an inmate at the Scotland Correctional
Institution. (Evans Aff. (DE 46-1) ¶¶ 3, 20).
Plaintiff participated in the Scotland C.I.'s work
release program, and he was assigned to defendant City of
Lumberton's public works department. (Id. ¶
20). On workdays, plaintiff took lunch breaks at the public
works department's shop breakroom. (Id.
¶¶ 11, 21-22).
McNeil was employed at the Lumberton Public Works Department
in the concrete pouring division. (Id. ¶¶
16-17). Defendant McNeil took his lunch breaks in the same
breakroom as plaintiff. (Id. ¶ 14, 18).
However, defendant McNeil did not directly work with the
Scotland C.I. inmates and he was not responsible for
supervising their work. (Id. ¶¶ 17, 18).
alleges defendant McNeil sexually assaulted him in the
bathroom located adjacent to the shop breakroom on three
separate occasions. Plaintiff's verified complaint
provides as follows:
On July 8, 2015, plaintiff . . . was at the Department of
Public Works on Cedar [Street] in Lumberton, NC, working as
an inmate. At around . . . lunch break in the break room
bathroom [of] the Department of Public Works building[, ]
defendant . . . McNeil walked into the bathroom and told the
plaintiff . . . if he [did not] give him oral sex he would
call the prison (Scotland Correctional Institute) and tell
them . . . plaintiff . . . was ...