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McClary v. Bradley

United States District Court, E.D. North Carolina, Western Division

September 16, 2019

RONALD McCLARY, Plaintiff,
v.
KRIS BRADLEY, Defendant.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant's motion for summary judgment (DE 60) pursuant to Federal Rule of Civil Procedure 56. The motion was fully briefed and the issues raised are ripe for decision. For the reasons that follow, the court grants the motion.

         STATEMENT OF THE CASE

         Plaintiff commenced this 42 U.S.C. § 1983 civil rights action by filing complaint on March 30, 2017, alleging defendant Kris Bradley (“Bradley”) violated his rights under the Eighth Amendment to the United States Constitution by sexually assaulting him. Plaintiff's complaint alleges the following events occurred at the Maury Correctional Institution (“Maury C.I.”) in 2016 and 2017:

Officers are to soft-touch when [they] escort [and] touch the arm. But [defendant] has touched my buttocks at various times when putting [me] in full restraints. Officers put chain in belt loops and have opportunity to be behind a[n] inmate and then [I] feel [defendant] touch [my] buttocks in a [sick] way but it was obvious what Sgt. Bradley do. He is openly gay and use sexual[] language inviting sexual acts involving the penis.

(Compl. (DE 1) § V). On October 12, 2017, plaintiff moved to amend the complaint. Plaintiff's proposed amended complaint contained additional allegations concerning the North Carolina Department of Public Safety's (“DPS”) investigation into the alleged sexual abuse. On November 20, 2017, the court granted plaintiff's motion to amend, conducted its initial frivolity review, and allowed the action to proceed.

         On June 26, 2018, the court entered case management order governing discovery and pretrial dispositive motions practice, and also appointed North Carolina Prisoner Legal Services, Inc. (“NCPLS”) to represent plaintiff for the discovery phase of the case. On July 5, 2018, the court denied plaintiff's motion to hold case in abeyance pending his transfer to another prison. On October 23, 2018, the court granted defendant's motion to strike plaintiff's response to defendant's Answer, and denied plaintiff's motion for leave to correct and clarify defendant's discovery responses.

         The parties completed discovery on or about December 3, 2018. On December 7, 2018, NCPLS moved to withdraw from representing plaintiff, noting its opinion that further appointment of counsel is not necessary in this action. The court granted NCPLS's motion to withdraw.

         On January 3, 2019, defendant filed the instant motion for summary judgment. In support, defendant relies upon a statement of material facts and the following: 1) declaration from defendant; 2) video recording of January 14, 2017, use of force incident; 3) incident report for January 14, 2017, use of force incident; 4) affidavit from Kimberly Grande, the executive director of DPS's Inmate Grievance Resolution Board; 5) DPS's inmate administrative remedy policy; and 6) appeal records for grievances plaintiff filed between January 14, 2017, and March 30, 2017.

         Plaintiff filed opposition on January 15, 2019, which relies upon a statement of material facts and the following: 1) excerpts from plaintiff's DPS administrative grievances and medical records, 2) defendant's discovery responses, and 3) DPS policies and procedures governing sexual assault investigations and unit manager responsibilities. Plaintiff filed amended response on February 8, 2019, which relies upon acknowledgment form documenting plaintiff reviewed the video recording of the January 24, 2017, incident, and additional medical and court records.

         DISCUSSION

         A. Standard of Review

         Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the non-moving party must then “come forward with specific facts ...


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