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Kelly v. Solomon

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

January 14, 2020

WILLIE T. KELLY, JR., Plaintiff,
v.
GEORGE T. SOLOMON, et al., Defendants.

          ORDER

          Frank D. Whitney, Chief United States District Judge.

         THIS 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).

         I. BACKGROUND

         Pro 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, [1] Chris Hatley, [2] Gregory Hayes[3] 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).

         (1) Amended Complaint (Doc. No. 15)

         Plaintiff 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 increased pain.

         On 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.

         Plaintiff 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.

         Plaintiff 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.

         (2) Defendants' Motion for Summary Judgment (Doc. No. 71)

         Defendants 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).

         Defendants 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.

         With 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.

         With 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.

         With 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.

         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.

         Plaintiff 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 need.

         With 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.

         The 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.

         Defendants 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 established right.

         (3) Plaintiff's Response (Doc. No. 83)

         Plaintiff 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 violated.

         (4) Evidence[4]

         (A) Declaration of Kenneth Beaver (Doc. No. 73-1)

         Defendant 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.

         Plaintiff 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).

         (B) Declaration of Alan Deese (Doc. No. 73-2)

         Defendant 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.

         (C) Declaration of Kimberly D. Grande (Doc. No. 73-3)

         Grande 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.

         Grande 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).

         (D) Declaration of David Hatley (Doc. No. 73-7)

         Defendant 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 inmates.

         Defendant 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 2).

         Plaintiff 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).

         (E) Declaration of John Herring (Doc. No. 73-8)

         In 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.

         Plaintiff 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).

         With 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 at 2).

         Herring 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).

         (F) Declaration of Kevin Ingram ...


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