United States District Court, W.D. North Carolina, Charlotte Division
WILLIE T. KELLY, JR., Plaintiff,
GEORGE T. SOLOMON, et al., Defendants.
D. Whitney, Chief United States District Judge.
MATTER comes before the Court on Defendants'
Motion for Summary Judgment, (Doc. No. 71), and on pro
se Plaintiff's “Motion to Alter Amend the
Judgment & Deposition Before Action or Pending Appeal
& Rule 27 Motion to Strike [Doc. 62-63] Motion to Stay
[Doc. 14, Doc. 42, Doc. 55-56, 60, ” (Doc. No. 66).
se incarcerated Plaintiff's Amended Complaint, (Doc.
No. 15), passed initial review on claims of the use of
excessive force/failure to intervene against Defendants Codi
Laur and Kevin Ingram, deliberate indifference to a serious
medical need against Kenneth Beaver, Alan Deese, John
Herring, Ingram, Jeffrey Krantz,  Chris Hatley,  Gregory
Hayes and Nurse William, and retaliation against
Hayes, Ingram, Krantz, Hatley, Laur, Scott McFaulds, and
Gregory Swink. See (Doc. No. 18). Summary judgment
was previously granted in favor of Defendant Hayes, (Doc.
Nos. 42, 59).
Amended Complaint (Doc. No. 15)
alleges that he uses a wheelchair and cane, that he needed
hip replacement surgery that he ultimately received, and that
his wrist was injured in 2013. On February 13, 2017,
Defendants Herring and Beaver allowed Defendant Deese to take
Plaintiff's doctor-ordered wheelchair when he had just
come back from a bone specialist in Raleigh. Defendant Deese
knew that Plaintiff's wheelchair was damaged on February
13, 2017 so that it would not roll straight. It was replaced
on March 22, 2017. This inflicted emotional pain and
March 8, 2017, there was a violent incident between gang
members in the housing dorm. Plaintiff commented that, if
officers were where they supposed to be on the floor, these
incidents would not happen. Defendant Ingram overheard
Plaintiff's comment. Defendant Ingram took
Plaintiff's cane and, when Plaintiff asked Defendant Laur
to be cuffed in front, Laur hit Plaintiff so hard he pushed
Plaintiff onto the bed and Plaintiff defecated himself.
Defendants Ingram and Krantz escorted Plaintiff to
segregation without a wheelchair or cane with his hands
cuffed behind him while knowing his wrist had been injured in
2013. As a result, Plaintiff's hip gave out which
reinjured him. Staff let go of Plaintiff while Plaintiff was
shackled and he hit his right upper eye and caused a knot on
his forehead for which he received six stitches at Anson
hospital. Upon Plaintiff's return from Anson Hospital
after the March 8 incident, Defendant Hatley put Plaintiff in
a suicide cell for five days without blood pressure
medication. Dr. Hayes never saw Plaintiff because Hayes
altered his medical record. Hayes stopped Plaintiff's
pain medication and Plaintiff broke out in a serious rash on
his legs, and his blood pressure was high due to an incident
on Anson. Plaintiff appears to allege that, after his hip
replacement surgery, Nurse William reduced his pain
medication without a doctor's approval.
alleges that Defendants Ingram and Krantz subjected him to
violence on March 8, 2017, in retaliation for his comment
about officers not being at their posts. After Plaintiff
returned from Anson Hospital following the March 8 incident,
Defendant Hatley retaliated by placing Plaintiff in a suicide
cell for five days without blood pressure medication,
property, or legal mail. Defendants Ingram, Laur, and McFauld
retaliated against Plaintiff by informing inmates about
Plaintiff's crime, which resulted in him having to be
placed in a holding cage which, in turn, inflicted emotional
distress. After Plaintiff was scheduled for hip surgery on
October 21, 2017, Defendant Swink retaliated by intentionally
violating his due process classification assignment because
Plaintiff had written a grievance complaining about
interference with mail procedures.
seeks declaratory judgment, injunctive relief, compensatory
and punitive damages, court costs, attorney's fees, a
jury trial, and any additional relief that the Court deems
just, proper and equitable.
Defendants' Motion for Summary Judgment
(Doc. No. 71)
Beaver, Deese, Hatley, Herring, Ingram, Krantz, Laur,
McFaulds, Swink, and Williams seek summary judgment. They
accept the facts as set forth in the Court's Order on
initial review of the Amended Complaint, (Doc. No. 18).
argue that “Nurse William” is not a proper
defendant to this lawsuit because no such defendant was named
in the caption of the Amended Complaint or was served or
waived service, and Disciplinary Hearing Officer A. Williams
was dismissed in the Order on initial review. Defendants
argue that Defendant Swink should be granted summary judgment
because Plaintiff failed to exhaust his administrative
remedies as to the retaliation claim against Swink.
regards to Plaintiff's claims of excessive force,
Defendants argue that Laur and Ingram should be granted
summary judgment because there is no evidence to support the
subjective component of the excessive force inquiry. The
allegation that Defendant Ingram took away Plaintiff's
cane and pushed him to his bed are insufficient because, when
a lockdown is underway and an inmate is refusing to obey
orders, is aggressive and combative and is being restrained,
it is standard procedure to take away anything like a cane
that could be used as a weapon. With regards to pushing,
nothing in the Amended Complaint suggests that pushing
Plaintiff to the bed was excessive. Staff are trained to
place an inmate on a flat surface, which the bed is, and it
would also cushion any fall. There is no allegation that
Plaintiff hit the bedframe or was otherwise injured as a
result of being placed on the bed. With regards to staff
letting Plaintiff go while he was shackled, resulting in a
laceration over his eye, this allegation is insufficient to
state a claim against any Defendant. Plaintiff does not
specify which staff member let him fall or explain when and
where this incident occurred and the allegation amounts to
simple negligence and not the knowing disregard of a serious
risk of injury.
regards to Laur, the Defendants who were in Plaintiff's
cell declare that they did not see any use of force other
than minimal hands-on techniques to control Plaintiff, nor
did they observe any sign that Plaintiff defected himself.
No. knot on Plaintiff's head or any other injury is
mentioned in the medical notes from March 8, 2017 other than
the laceration over his eye that was mentioned and treated,
and the evidence reveals that the laceration occurred after
Plaintiff was escorted to Richmond Unit. There is no evidence
other than Plaintiff's statements that there was an
injury, defecation, or hitting. Plaintiff's allegations
do not make sense in light of the evidence and he has not set
forth more than a scintilla of evidence, which does not
create a genuine dispute of material fact. If there was no
use of excessive force by Laur, Defendant Ingram cannot be
liable for failure to intervene. The only potential
allegation of excessive force is Laur's alleged strike to
Plaintiff's head which, according to the allegations,
would have been quick and Ingram would not have had a
reasonable opportunity to intervene.
regards to Plaintiff's claims of deliberate indifference
to a serious medical need, the claims against Defendants
Deese, Herring, and Beaver should be dismissed because the
need for a wheelchair is not obvious to a lay person.
Plaintiff did not have a medical order for a wheelchair and,
on February 27, 2017 during the time of the alleged
deprivation, Plaintiff returned from an uneventful orthopedic
appointment with no new orders. Plaintiff was voluntarily
provided with a wheelchair on March 22, 2017. Plaintiff was
transferred to Marion C.I., and during the whole time he was
housed there, he was not provided a cane or wheelchair.
Plaintiff cannot establish that he had a serious medical need
for a wheelchair at that time and there is no forecast
evidence for the subjective element, i.e., that
Herring and Beaver knew of a serious medical condition and
ignored it. Nor is there any constitutional violation for
taking a broken wheelchair away from Plaintiff.
alleges that Defendant Hatley was deliberately indifferent
for placing Plaintiff in a suicide cell for five days without
blood pressure medication, this allegedly occurred on March
8, 2017 at 11:50PM, however, Hatley's hours were 8:00 to
17:00 and he would not have been at work at 23:50 hours that
day. Dr. Bowman ordered that Plaintiff be placed on
self-injurious behavior (“SIB”) precautions at
19:25 on March 8 before Plaintiff was sent to Anson. Only
medical staff can administer and withhold medications.
Correctional staff such as Defendant Hatley has no role
regarding the administration of medication.
alleges that Defendants Ingram and Krantz were deliberately
indifferent by escorting Plaintiff to segregation on March 8,
2017 without a wheelchair or cane. Plaintiff did not have a
medical order at that time and therefore did not have a
serious medical need for one at that time. Plaintiff alleges
that his hip gave out on him in Richmond Unit. However, the
altercation and escort began around 15:30 but Plaintiff was
not seen for an eye laceration until 20:20. There is thus no
evidence of a serious medical need and no evidence that
Defendants Ingram and Krantz knew of, and disregarded, such a
regards to Plaintiff's claims of retaliation, Defendant
Hatley was not responsible for any decision to place
Plaintiff in a cell with a camera or for the administration
of medication. The retaliation claims against Defendants
Ingram, Lauer, and McFaulds are not specific enough.
Plaintiff alleges that these Defendants informed other
inmates about Plaintiff's crime. However, he fails to
describe the convictions for which he is incarcerated or
explain how that would place him in danger from other
inmates. Nor does he say when he was placed in a Richmond
holding cage or how long he remained there such that it
caused emotional distress. Records show that Plaintiff was in
a holding cell on March 8, 2017 because of an altercation
with staff. When he returned from Anson Medical Center, he
was placed in Anson Unit and remained there until he was
transferred to Marion C.I. in May. Because Plaintiff was
placed in Richmond because of an altercation, he cannot show
that his placement in a holding cage was the result of
retaliation because Defendants told other inmates about his
crime. Even if he could prove causation, his conclusory
allegations of emotional distress after a short stay in a
Richmond holding cage does not support his claim. To the
extent Plaintiff was suicidal, he states in a grievance that
this was because he received bad news about his mother after
she was in a car crash.
claims of retaliation against Defendant Swink are unexhausted
and, in any event, there is no forecast evidence to support
this claim. Defendant Swink was an RDU director; he had
nothing to do with the mail and had no reason to retaliate
because Plaintiff filed a grievance about mail. The RDU
program has its own step-downs and is not affected by the
filing of any grievance. Therefore, even if the retaliation
claim against Swink was not unexhausted, it should be
dismissed because it is vague, conclusory, and unsupported.
further argue that their official capacity claims are barred
by sovereign immunity and that they are entitled to qualified
immunity for the claims against them in their individual
capacities because they did not violate any clearly
Plaintiff's Response (Doc. No. 83)
contends that Defendants' Motion for Summary Judgment
should be denied because he has evidence showing that there
is ongoing retaliation with incoming and outgoing mail, that
he was assaulted, and that deliberate indifference, cruel and
unusual punishment, and mail tampering are occurring. He also
appears to allege that there has been a change in the
incident report and that his due process rights are being
Declaration of Kenneth Beaver (Doc. No.
Beaver was Assistant Superintendent of Custody/Operations at
Lanesboro between October 2012 and May 8, 2017. Beaver was
responsible for overseeing all staff and inmates in his
supervisory chain of command to ensure compliance with
departmental policies and procedures.
alleges that Defendant Deese took away his wheelchair and
that Defendants Herring and Beaver allowed that to happen
when Plaintiff returned from an appointment with an outside
orthopedic physician. As correctional staff, Beaver would
have not been able to, nor would he have ordered that a
medically required wheelchair be taken away from Plaintiff.
Beaver “ha[s] no recollection of [Plaintiff's]
wheelchair being taken away from him, and [has] no
recollection of ordering or ‘allowing' Correctional
Officer Deese to do so.” (Doc. No. 73-1 at 2).
Declaration of Alan Deese (Doc. No. 73-2)
Deese was a Correctional Officer at Lanesboro in March 2017.
Defendant Deese “was unaware that [Plaintiff] had a
doctor's order that he necessarily be provided with a
wheelchair” and it is Deese's understanding that on
February 13, 2017, Plaintiff “did not have a
doctor's order requiring the use of a wheelchair.”
(Doc. No. 73-2 at 1). Deese did provide the wheelchair that
Plaintiff was using to another inmate who overdosed. However,
the wheelchair was not operating properly and it was
Deese's understanding that another wheelchair had been
ordered for Plaintiff's use. It is Deese's
recollection that Plaintiff had a cane and that he was able
to walk with the cane without putting himself in danger.
Declaration of Kimberly D. Grande (Doc. No.
is the Executive Director of NCDPS Inmate Grievance
Resolution Board (“IGRB”). IGRB is a separate
agency within the Division of Adult Correction of the NCDPS.
Its examiners are charged with investigation of inmate
grievances pursuant to the procedures established by the
Administrative Remedy Procedure (“ARP”). ARP
establishes a three-tier review process with IGRB appeal
being the final step. Exhaustion is not complete until the
IGRB completes Step-3 review of the grievance appeal and an
order is issued by IGRB.
examined the IGRB records for all Step-3 grievance appeals
filed by Plaintiff between June 1, 2015 and November 6, 2018.
During this time, IGRB issued 11 orders in response to Step-3
appeals submitted by Plaintiff. Three of the grievance orders
were originated or concerning Marion C.I. See (Doc.
No. 73-4 at 1-4; 73-5 at 1-4, 73-6 at 1-11).
Declaration of David Hatley (Doc. No. 73-7)
Hatley was the Unit Manager of Anson Unit at Lanesboro in
March 2017. He is familiar with DPS policies and procedures,
and Lanesboro SOP regarding use of force and medical care for
Hatley's hours as Unit Manager were Monday-Friday 08:00
to 17:00. He “can confirm that [he] was not on duty
when [Plaintiff] returned from Anson. Therefore, [he] could
not have ordered [Plaintiff] to be placed in a cell with a
camera.” (Doc. No. 73-7 at 2). “[I]n this case,
mental health staff ordered [Plaintiff] to be housed in a
cell with a camera because he was on the highest level of
Self-Injurious Behavior precautions.” (Doc. No. 73-7 at
alleges that Defendant Hatley withheld blood pressure
medication or ordered that it not be administered.
“Custodial staff has no control over the administration
of medication. Nurses administer medication at the direction
of a physician. If the medication was not administered it was
done at the direction of medical staff. [Hatley] did not have
anything to do with the administration of medication to
[Plaintiff]; nor did [Hatley] order or direct the medical
staff not to administer medication. [Hatley] did not
otherwise retaliate against [Plaintiff].” (Doc. No.
73-7 at 2).
Declaration of John Herring (Doc. No. 73-8)
March 2017, Defendant Herring was Superintendent of Lanesboro
C.I. Herring is familiar with NCDPS policies and procedures,
and Lanesboro SOP re use of force, conditions of confinement
and programs provided at the facility.
alleges that Defendant Herring allowing Defendant Deese to
take Plaintiff's wheelchair away on February 17, 2017.
However, “[u]ntil Plaintiff filed this lawsuit,
[Herring] had no knowledge or memory whatsoever of
Plaintiff's wheelchair being taken away.” (Doc. No.
73-8 at 2).
respect to the necessity of use of a wheelchair is a medical
issue, and as correctional staff neither Herring nor any of
his correctional staff would have controlled the process
relating to the prescription, ordering or requiring the use
of a wheelchair. Herring aware that some inmates are provided
with a wheelchair even if it is not required, ordered or
prescribed by the medical staff, but the provision of the
wheelchair in that instance is voluntary and for the
convenience of the inmate. Regardless, in February and March
of 2017 Herring “had no knowledge of Officer Deese
taking away Plaintiff's wheelchair.” (Doc. No. 73-8
does not remember having a discussion with Plaintiff or
interacting with him. As administrator, Herring did review
the incident report of the March 8, 2017 incident and
reviewed video of the incident that is being provided to the
Court. See (Doc. No. 73-9).
Declaration of Kevin Ingram ...