United States District Court, E.D. North Carolina, Western Division
THOMAS PATTEN, LESLIE TEACHEY, RYAN TURNER, BUDDHA VICTORIA, CHRIS YERRY, STUART GAIDOSH, DONNIE IVEY, SCOTT IVEY, T.J. LOCKLEAR, PHILLIP JARMAN, XAVIER MOORE, GARY PARKER, JAMEY LEE DOWLESS, BRYAN CRUMP, JR., JEREMY CLINE, DEXTER BROWN, JOSHUA BOYKIN, MARCELL ALSBROOK, STEVIE WILLIAMS, DONALD MORRISEY, PAUL BARTON, LEROY HUNT, CEDRIC WILLIAMS, ADEMAR MARTINEZ, and JOHNNY FAISON, Plaintiffs,
LAFAYETTE HALL, JEFFREY MARKS, ANTHONY JACKSON, DAVID JONES, KENNETH N. JONES, JR., HENRY OUTLAW, CLEMENT BURNEY, CHARLES HOLLAND, EUGENE MURPHY, RONNIE BRITT, WILLIAM M. WARD, and NELSON SANCHEZ, Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendants' motion for
summary judgment (DE 189), plaintiffs' motion for
sanctions (DE 179), and the parties' consent motions to
seal (DE 184, 187) certain filings. The motions for summary
judgment and sanctions were fully briefed and in this posture
are ripe for decision. For the reasons that follow, the court
grants defendants' motion for summary judgment, denies
plaintiffs' motion for sanctions, and grants the motions
OF THE CASE
29, 2015, plaintiffs, current and former state prisoners
acting through counsel, brought this action against Frank L.
Perry (“Perry”), the North Carolina Department of
Public Safety (“DPS”), Lafayette Hall
(“Hall”), Jeffrey Marks (“Marks”),
Anthony Jackson (“A. Jackson”), David Jones
(“D. Jones”), Kenneth N. Jones Jr. (“K.
Jones”), Sergeant Wilson (“Wilson”), Henry
Outlaw (“Outlaw”), Clement Burney
(“Burney”), Charles Holland
(“Holland”), Officer Hudson
(“Hudson”), Eugene Murphy (“Murphy”),
Ronnie Britt (“Britt”), William M. Ward
(“Ward”), and Nelson Sanchez
(“Sanchez”), alleging claims for violations of
their civil rights pursuant to 42 U.S.C. § 1983, and
tort law claims under North Carolina law.
Thomas Patten (“Patten”), Leslie Teachey
(“Teachey”), Ryan Turner (“Turner”),
Buddha Victoria (“Victoria”), Chris Yerry
(“Yerry”), Stuart Gaidosh
(“Gaidosh”), Donnie Ivey (“D. Ivey”),
Scott Ivey (“S. Ivey”), T.J. Locklear
(“Locklear”), Phillip Jarman
(“Jarman”), Xavier Moore (“Moore”),
Gary Parker (“Parker”), Jamey Lee Dowless
(“Dowless”), Bryan Crump, Jr.
(“Crump”), Jeremy Cline (“Cline”),
Dexter Brown (“Brown”), Joshua Boykin
(“Boykin”), Marcell Alsbrook
(“Alsbrook”), Stevie Williams (“S.
Williams”), Donald Morrisey (“Morrisey”),
Paul Barton (“Barton”), Leroy Hunt
(“Hunt”), Cedric Williams (“C.
Williams”), Ademar Martinez (“Martinez”),
and Johnny Faison (“Faison”) are current or
former North Carolina inmates who were incarcerated at the
Sampson Correctional Institution (“Sampson C.I.”)
between 2011 and 2012. Plaintiffs were assigned to the
“Road Squad” at the Sampson C.I. - an inmate work
crew that performed landscaping and maintenance activities in
the community. Plaintiffs allege that defendants A. Jackson
and D. Jones abused and humiliated them when they working on
the Road Squad, and forced them to participate in a
contraband smuggling operation.
September 2, 2015, plaintiffs filed amended complaint and
alleged the following claims: 1) violations of 18 U.S.C.
§ 1962(c) against defendants A. Jackson, D. Jones,
Hudson, Murphy, Britt, Ward, and Sanchez; 2) constructive
fraud against all defendants; 3) civil conspiracy against
defendants A. Jackson, D. Jones, Hudson, Murphy, Britt, Ward,
and Sanchez; 4) denial of access to the courts in violation
of the First Amendment to the United States Constitution
against defendants DPS and Perry; 5) intentional and
negligent infliction of emotional distress against defendants
A. Jackson, D. Jones, Hudson, Murphy, Britt, Ward, and
Sanchez; 6) civil rights claims pursuant to 42 U.S.C.
§§ 1983 and 1985, premised on violations of the
First, Fifth, Eighth, and Fourteenth Amendments to the United
States Constitution, against defendants DPS, A. Jackson, D.
Jones, Hudson, Murphy, Britt, Ward, Sanchez, K. Jones,
Wilson, Outlaw, Burney, Holland, Hall, Marks, and Perry; 7)
negligent employment and supervision against defendants DPS,
K. Jones, Wilson, Outlaw, Burney, Holland, Hall, Marks, and
Perry; 8) negligence by private contractors against unknown
defendant medical contractors; and 9) punitive damages
pursuant to 42 U.S.C. § 1983 against defendants A.
Jackson and D. Jones in their individual capacities only. As
relief, plaintiffs seek compensatory and punitive damages,
and an injunction directing the State of North Carolina to
provide sufficient funding to allow inmates meaningful access
to the courts.
Hall, K. Jones, Wilson, Outlaw, Burney, Holland, Murphy,
Britt, Ward, and Sanchez filed answer to plaintiffs'
amended complaint on December 22, 2015. Defendant D. Jones,
proceeding pro se, filed answer on December 23, 2015.
Defendant A. Jackson did not respond to plaintiffs'
April 20, 2016, the court granted plaintiffs' motion to
voluntarily dismiss the action as to formerly-named
defendants Perry and DPS, and the court dismissed the action
as to formerly-named defendants Wilson and Hudson for failure
to perfect service. On April 29, 2016, the court entered case
management order governing discovery and pretrial motions
practice. On June 3, 2016, the court entered default against
defendant A. Jackson for failure to plead or otherwise
in this action has been protracted and contentious. As
relevant to the instant motions, on August 10, 2017,
plaintiffs filed motion to compel responses to
plaintiffs' written discovery requests. The court
referred the motion to a magistrate judge. On December 7,
2017, the magistrate judge entered order granting in part and
denying in part the motion to compel, and directed defendants
Hall, K. Jones, Burney, Holland, Murphy, Britt, Ward, Marks
and Sanchez (together, “responding defendants”)
to produce responses to certain of plaintiffs' written
discovery requests by December 20, 2017.
responding defendants did not produce their discovery
responses by December 20, 2017, and thus plaintiffs filed
their first motion for sanctions on December 29, 2017. The
motion was fully briefed. On April 25, 2018, the court
granted the motion for sanctions, imposed monetary sanctions,
and reopened discovery for a period of four months
(subsequently extended to five months on consent motion of
the parties) to allow plaintiffs to obtain the necessary
August 14, 2018, responding defendants filed notice of
compliance with the court's April 25, 2018, order, noting
that all responding defendants except defendant Marks had
complied with the order. The notice explained defendant Marks
failed to cooperate with counsel's efforts to obtain the
discovery from him. The supplemental discovery period closed
on September 30, 2018.
October 18, 2018, plaintiffs filed the instant second motion
for sanctions based on defendant Marks's failure to
respond to the court's December 7, 2017, and April 25,
2018, orders directing him to respond to plaintiffs'
discovery requests. Plaintiffs seek an array of sanctions,
including entry of default judgment against defendant Marks.
The motion was fully briefed.
November 30, 2018, defendants Hall, Marks, K. Jones, Outlaw,
Burney, Holland, Murphy, Britt, Ward and Sanchez (together,
“moving defendants”) filed the instant motion for
summary judgment, relying on a memorandum of law, statement
of material facts, and the following: 1) excerpts of
depositions from defendants Holland, Burney, D. Jones,
Outlaw, Marks, Hall, Britt, Murphy, Sanchez, K. Jones, Ward,
and A. Jackson, plaintiffs Boykins, Jarman, Patten, D. Ivey,
Dowless, and Parker, Rule 30(b)(6) witness Captain Robert Van
Gorder (“Gorder”), the Sampson C.I. assistant
superintendent of custody and operations, Alvin Keller
(“Keller”), a DPS corrections officer, Rommie
Barts (“Barts”), a DPS corrections officer,
William Jackson (“W. Jackson”), a DPS corrections
officer, Kathy Poole (“Poole”), a DPS
administrator, and Emilio Pagan (“Pagan”), a DPS
investigator; 2) declarations of Gorder, Karen R. Pardue
(“Pardue”), a DPS correctional programs director,
and Linda Clark (“Clark”), a DPS records
coordinator; 3) complaint in Parker et al. v. Sampson
Corr. Inst., No. 1:12-CV-769-CCE-JEP (M.D. N.C. July 23,
2012); and 4) plaintiffs' initial disclosures.
responded in opposition to the instant motion for summary
judgment on March 21, 2019. In support, they rely upon a
memorandum of law, statement of material facts, and the
following: 1) full depositions from the same parties and
witnesses filed in support of defendants' motion, with
the exception of defendant Outlaw; 2) deposition from Eric
Warren (“Warren”), a DPS employee in the
information security office; 3) inmate grievance forms from
plaintiffs Brown, Dowless, D. Ivey, Jarman, Parker, Patten,
Williams, and Yerry; 4) affidavits from plaintiffs Cline,
Gaidosh, Faison, Locklear, and Williams; 5) records from
defendant D. Jones's appeal of DPS's decision to
terminate his employment (“Jones Appeal”); and 6)
DPS Investigation Findings of Fact related to plaintiffs'
April 4, 2019, moving defendants filed reply in further
support of their motion for summary judgment, supported by
reply statement of material facts.
OF THE FACTS
moving defendants move for summary judgment, the court
recounts the facts in the light most favorable to plaintiffs.
Sampson C.I. Road Squad is an inmate work crew that performs
maintenance and landscaping services in the community
surrounding the prison. (Patten Dep. (DE 202-18) at 19:12-16;
A. Jackson Dep. (DE 202-9) at 9:17-23). Between 2011 and July
2012, defendants A. Jackson and D. Jones were the primary
supervisors of the Road Squad. (A. Jackson Dep. (DE 202-9) at
9:2-7; D. Jones. Dep. (DE 202-12) at 42:6-24, 45:6-25; Ward
Dep. (DE 202-22) at 14:13-19). As noted, plaintiffs allege
defendants A. Jackson and D. Jones abused and humiliated them
when they worked on the Road Squad, and forced them to
participate in a contraband smuggling operation.
alleged abuse started with an “initiation”
ritual. (DPS Investigation Findings of Fact (DE 202-39) at
When a new Sampson C.I. inmate joined the Road Squad,
defendants A. Jackson and D. Jones told him to stick his
fingers into a sandwich bag containing extremely spicy hot
sauce and lick the hot sauce off his fingers. (Id.;
Murphy Dep. (DE 202-16) at 28:5-29:15).
A. Jackson and D. Jones's abuse of plaintiffs continued
after this initiation ritual, and included physical,
psychological, and emotional abuse, racial harassment, and
forcing plaintiff to perform humiliating, embarrassing, and
dangerous acts on each other and with animals. (Cline Aff.
(DE 202-32) ¶ 7; Gaidosh Aff. (DE 202-33) ¶ 6;
Faison Aff. (DE 202-34) ¶ 7). For example, plaintiffs
reported defendants A. Jackson and D. Jones forced them to
consume hot sauce, physically assault other inmates, allow
other inmates to hold them down and squeeze their genitals,
and rub hot sauce on their genitals or anus. (Cline Aff. (DE
202-33) ¶ 7; Gaidosh Aff. (DE 202-33) ¶ 6; Faison
Aff. (DE 202-34) ¶ 7; Locklear Aff. (DE 202-35)
¶¶ 10-15; Williams Aff. (DE 202-36) ¶ 25;
Jarman Dep. (DE 202-11) at 90:15-91:8).
A. Jackson and D. Jones also allegedly ran a contraband
smuggling operation, primarily involving tobacco, illicit
narcotics, and cellular telephones, and forced plaintiffs to
participate. (Gaidosh Aff. (DE 202-33) ¶ 10; Patten Dep.
(DE 202-18) at 32:10-11; Ivey Dep. (DE 202-8) at 47:2-10;
Dowless Dep. (DE 202-5) at 37:15-38:7, 53:16-54:23; Jarman
Dep. (DE 202-11) at 44:21-45:5; Parker Dep. (DE 202-17) at
100:5-21, 107:3-13). Some plaintiffs were forced to conceal
contraband in their body cavities in order to smuggle it into
the prison. (Gaidosh Aff. (DE 202-33) ¶ 10; Ivey Dep.
(DE 202-8) at 47:2-10; Dowless Dep. (DE 202-5) at 37:15-38:7,
53:16-54:23; Jarman Dep. (DE 202-11) at 44:21-45:8; Parker
Dep. (DE 202-17) at 100:5-21, 107:3-13). Plaintiffs Parker
and Dowless testified that they transferred some of the
profits they made from selling the contraband to defendants
A. Jackson and D. Jones. (Parker Dep. (DE 202-17) at
100:5-21, 107:3-13; Dowless Dep. (DE 202-5) 52:3-21,
56:20-23). Defendants A. Jackson and D. Jones rewarded
plaintiffs who cooperated with the contraband smuggling
scheme and the inmate abuse, including by permitting them to
consume outside food and drinks, smoke cigarettes, and use
cellular telephones. (Jarman Dep. (DE 202-11) at 69:11-19).
January or February 2012, defendant Marks, the assistant
superintendent at the Sampson C.I., received a report from an
inmate that defendant A. Jackson instructed him to use a
racial epithet towards another member of the Road Squad.
(See Marks Dep. (DE 202-15) at 52:6-54:1, 62:8-63:1,
107:10-23). He informed defendant Hall, the superintendent of
the Sampson C.I., about the allegation, and defendant Hall
stated it was being investigated. (Id. at
2012, DPS officials launched an investigation after plaintiff
Dowless reported that defendants A. Jackson and D. Jones
instructed white Road Squad inmates to hold black inmates
down and torture them by grabbing their genitals, purchased
contraband for Road Squad inmates, and engaged in other
inappropriate behavior. (Internal Investigation Report (DE
191-27)). Approximately a week after learning about the
allegations, Sampson C.I. officials removed defendants A.
Jackson and D. Jones from the Road Squad pending the
investigation. (Moving Defs' SOMF (DE 190) ¶ 172;
Van Gorder Decl. (DE 191-25) ¶ 10; Internal
Investigation Report (DE 191-27)). Defendant A. Jackson
resigned from his DPS position in December 2012. (A. Jackson
Dep. (DE 202-9) at 78:3). Following an investigation into the
allegations, DPS terminated defendant D. Jones's
employment. (Van Gorder Decl. (DE 191-25) ¶ 11).
moving defendants did not generally supervise plaintiffs when
they were working on the Road Squad. (Hall Dep. (DE 202-6) at
8:21-9:2, 10:10-11; Marks Dep. (DE 202-15) at 35:20-37:2; K.
Jones Dep. (DE 202-13) at 59:7-19, 61:8-20, 62:10-13; Outlaw
Dep. (DE 191-5) at 22:6-23, 23:11-14; Burney Dep. (DE 202-4)
at 38:15-23, 32:16, 33:5, 38:21-23; Holland Dep. (DE 202-7)
at 10:12, 11:9, 12:2-8, 17:10, 18:2, 46:21, 47:5; Murphy Dep.
(DE 202-16) at 37:2-9; Britt Dep. (DE 202-3) at 17:1-6,
22:4-12; Ward Dep. (DE 202-22) at 10:20-23; Sanchez Dep. (DE
202-20) at 9:15-10:3). Plaintiffs, however, allege they were
aware of the abuse and contraband smuggling operation
described above, and failed to report it or otherwise protect
plaintiffs from further abuse. In support of these claims,
plaintiffs offer the following evidence.
Murphy, a Sampson C.I. corrections officer, trained with the
Road Squad for approximately 40 hours in 2011 or 2012.
(Murphy Dep. (DE 202-16) at 25:12-24). During that time,
defendant Murphy observed members of the Road Squad taste
defendant A. Jackson's hot sauce. (Id. at
28:5-30:22). Defendant Murphy explained that “I think
probably my first day they talked about . . . anybody
involved with the road squad . . . it was customary . . . to
taste this hot sauce.” (Id. at 28:5-8).
Defendant Murphy further testified that defendant A. Jackson
asked him to taste the hot sauce one day during their lunch
break and he confirmed it was uncomfortably spicy.
(Id. at 29:8:15). Defendant Murphy assumed defendant
A. Jackson brought the hot sauce in his lunch bag.
(Id. at 29:24-25). Finally, defendant Murphy
witnessed defendant A. Jackson tell one inmate who was new to
the Road Squad that all new members of the Road Squad needed
to taste the hot sauce. (Id. at 30:5-13). He did not
observe any other inmates taste the hot sauce during his time
on the Road Squad. (Id. at 31:2-7). Barts, a Sampson
C.I. corrections officer, also testified that he observed
defendant Jackson with a glass bottle of hot sauce on the
Road Squad bus, in violation of DPS policy. (Barts Dep. (DE
202-1) at 20:5-21:5).
Jarman testified that defendant Marks found the hot sauce on
the bus on one occasion and asked defendant A. Jackson
“is this what you use?” (Jarman Dep. (DE 202-11)
at 54:18-20). Defendant A. Jackson then responded,
“Yeah, that's it.” (Id.). Plaintiff
D. Ivey testified that he observed defendant Marks holding
the hot sauce on the bus. (D. Ivey Dep. (DE 202-8) at
Ward, a Sampson C.I. corrections officer, testified that he
found contraband on the Road Squad bus, including cigarette
lighters, tobacco, and ashtrays, and that inmates often
attempted to conceal this contraband in rubber gloves hidden
in the seats. (Ward Dep. (DE 202-22) at 15:14-16:4)).
Defendant Ward also searched inmates when they returned from
the Road Squad. (Id. at 21:10-16). On various
occasions, defendant Ward found cigarettes, bags of tobacco,
cell phone chargers, condoms and money that Road Squad
inmates were attempting to smuggle into the Sampson C.I.
(Id.). He also recalled that he discovered “a
lot more contraband” on inmates between 2011 and 2012 .
(Id. at 22:17-25).
Britt, a Sampson C.I. corrections officer, observed inmates
smoking on a bus that transferred some members of the Road
Squad to other work assignments or back to the Sampson C.I.
(Britt Dep. (DE 202-3) at 102:16-103:16).
Jackson, a Sampson C.I. lieutenant, was personally aware of
three incidents when Road Squad inmates attempted to bring
contraband into the prison in a hollowed-out cooler. (W.
Jackson Dep. (DE 202-10) at 23:6-24:17). However, DPS
officials did not charge the Road Squad inmates or defendants
A. Jackson and D. Jones with possession of contraband because
the contraband was not found on them personally.
(Id. at 23:22-24:7). W. Jackson also testified that
DPS did not investigate whether any of the Road Squad
corrections officers were responsible for modifying the
coolers, because he believed the inmates were responsible.
(Id. at 25:24-26:23). Although DPS officials
questioned the inmates, none of them claimed responsibility
for modifying the coolers, and DPS did not conduct further
investigation. (Id. at 26:24-27:12).
a DPS administrator who completed the internal DPS
investigation about the Road Squad, also testified concerning
one incident in which a large amount of contraband was found
coming into the Sampson C.I. from the Road Squad. (Poole Dep.
(DE 202-19) at 63:25-64:6). The tobacco was in a cooler that
had been on the Road Squad bus, and plaintiff Locklear was
holding the cooler before officials searched it and
discovered the contraband. (Id. at 64:10-19). The
investigating officer initiated a disciplinary report, but
defendant K. Jones decided not to proceed with formal
disciplinary charges against plaintiff Locklear.
(Id.; see also id. at 66:17-67:17). The
initial disciplinary report has been lost, and defendant K.
Jones may have destroyed it after he decided not to pursue
formal charges against plaintiff Locklear. (See id.
Jarman testified that he believed defendant Ward allowed him
to smuggle contraband into the Sampson C.I. because he was
friends with plaintiff A. Jackson. (Jarman Dep. (DE 202-11)
at 49:19-24). Defendant Ward searched plaintiff Jarman on at
least one occasion when he had contraband after returning
from the Road Squad and did not find it. (See id.).
Another DPS corrections officer searched plaintiff Jarman on
two occasions when he was concealing contraband on his person
(but not in a body cavity) and did not find it. (Id.
at 53:3-24). Plaintiff Jarman also testified that he believed
defendant Ward and another DPS corrections officer were not
randomly assigned to search him when he returned from working
on the Road Squad, in order to facilitate the contraband
smuggling operation. (Id. at 48:20-49:24). However,
plaintiff Jarman also testified that, corrections officers
“rotated out” and “there was no real rhyme
or reason” to how Sampson C.I. officials assigned
officers to conduct strip searches of Road Squad inmates.
(Id. at 51:14-19).
Parker successfully transported contraband he received while
working on the Road Squad into the Sampson C.I., noting that
he smuggled contraband into the prison almost every day.
(Parker Dep. (DE 202-17) at 60:14-17; 109:23-110:21).
According to plaintiff Parker, Sampson C.I. corrections
officers did not perform proper body cavity searches when the
plaintiffs returned from their work on the Road Squad.
(Id.). Plaintiff Parker also testified that at times
he was not searched at all. (Id. 73:17-19).
Plaintiff Patten testified similarly. (Patten Dep. (DE
202-18) at 56:17-57:6). Defendant D. Jones reported that he
informed his supervisors that some Road Squad inmates had
cellular telephones and other contraband while they were
performing work outside the prison, but the
“supervisors did not seem bothered by it.” (Jones
Appeal (DE 202-37)).
conducting her investigation, Poole also determined that
defendant Hall, the Sampson C.I. superintendent, had not
followed DPS policy and procedure because he had failed to
check the Road Squad at least once a month. (Poole Dep. (DE
202-19) at 71:11-72:2). Poole believes some of the alleged
incidents that took place on the Road Squad could have been
avoided if defendant Hall and others had properly completed
their inspections of the Road Squad. (Id. at
least one occasion, plaintiff Jarman overhead defendant A.
Jackson tell defendants Outlaw, Wilson, and Burney, that he
was taking out his “slaves” on the Road Squad.
(Jarman Dep. (DE 202-11) at 57:1-10).
Motion for ...