RICHARDSON v. TAYLOR

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

OLANDER RAYMOND RICHARDSON, )

)

Plaintiff, )

)

v. ) 1:19cv352

)

SGT. TAYLOR and )

OFFICER HOPKINS, )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on “Defendants’ Motion to

Dismiss Plaintiff’s Complaint” (Docket Entry 12) (the “Dismissal

Motion”) filed by “Sgt. Taylor and Officer Hopkins” (collectively,

the “Defendants”) (id. at 1).1 For the reasons that follow, the

Court should grant in part and deny in part the Dismissal Motion.

BACKGROUND

Alleging that Defendants “violated [his] eight[h-]amendment”

rights “by using excessive force” (Docket Entry 2 (the “Complaint”)

at 4), Olander Raymond Richardson (the “Plaintiff”), now a federal

prisoner (see id. at 2), initiated this action pursuant to 42

U.S.C. § 1983 against Defendants in their individual and official

capacities (see id. at 2-3), for their alleged actions on the night

1 Citations herein to Docket Entry pages utilize the CM/ECF

footer’s pagination. For legibility reasons, this Opinion uses

standardized spelling and capitalization in all quotations from the

parties’ materials.

of April 11, 2017, at the Alamance County Jail (see id. at 5-6).

According to the Complaint:

On April 11, 2017, something “went on inside [the] S Block” of

the Alamance County Jail, prompting officers to “lock [the

prisoners] down.” (Id. at 12.) At that time, Plaintiff “was on

the phone so [he] and Sgt. Taylor had some words[: Sgt. Taylor]

told [Plaintiff] to pack [his] stuff[. Plaintiff] told [Sgt.

Taylor] to pack it[.]” (Id.) Sgt. Taylor then entered Plaintiff’s

cell and began to throw Plaintiff’s “mail and food on the top tear

well top level of the Block[,] so [Plaintiff began] telling [Sgt.

Taylor] that he had no reasons to throw [Plaintiff’s] personal

stuff.” (Id. at 12-13.)

Sgt. Taylor “then beg[a]n to force [Plaintiff] down the

stairs[,] grabbing [Plaintiff] in an unprofessional way[. As] soon

[as they] got outside of [the] S Block[, Plaintiff] pull[ed his]

arm[. Sgt. Taylor] then beg[a]n to throw punches.” (Id. at 13.)

“[B]eing in defense mode[, Plaintiff] start[ed] to block [his]

face[.] Officer Hopkins came to [Plaintiff’s] right side and began

to help punch [Plaintiff].” (Id.) “[T]hey g[o]t [Plaintiff] to

the ground and cuff[ed Plaintiff] and Officer Taylor [sic] [as]

well [as] Sgt. Taylor began to hit [Plaintiff] with the stick they

use to hit the buttons in the block to keep up with the rounds[.]”

(Id.) “[Plaintiff] just saw blood all over the floor[.]” (Id.)

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“Jimmy Downny from Q Block saw it[,] Atonio Griffen[,] Desmond

Maccaire, Josh Gaint, on that night all blocks didn’t lock down

because they saw [Plaintiff] getting beat while handcuffed so

street officers w[ere] called[.]” (Id.)* ™“[Plaintiff] was t[aken]

to medical by Officer Allen” (id.}), who “was present but never

cause[d] no harm” (id. at 12). “Justice Paul[,] a female[,] she

said what happen[fed] to you[? Plaintiff] told her.” (Id. at 13;

see also id. (“[I]f [Plaintiff] was a problem[,] why wasn’t [he]

tased[?]”).)

As a result of the foregoing, Plaintiff “had a broken nosel[,

so he] went to Alamance Regional Hospital[ and was] referred to a

nose specialist.” (Id. at 5.) Plaintiff “went to medical for pain

meds[,]” but still experiences headaches and “breathing problems

and see[s] speaks [sic] in [his] vision.” (Id.) As relief,

Plaintiff asks “for [his] medical bills to be paid” and for

“$350,000 for [his] pain and suffering.” (l1d.)

In response, Defendants “move[] to dismiss the Complaint...

pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure”

(the “Rules”). (Docket Entry 12 at 1.) Plaintiff opposes the

Dismissal Motion (see Docket Entry 16), at least regarding his

individual-capacity claims (see generally id. (addressing

2 Plaintiff remains unsure of how to spell the names of

those identified in his Complaint. (Id.)

allegations against Defendants personally without reference to jail

policy)).

DISCUSSION

I. Relevant Standards

A. Rule 12 (b) (6)

A Rule 12 (b) (6) motion “tests the sufficiency of a complaint,”

but “does not resolve contests surrounding the facts, the merits of

a claim, or the applicability of defenses.” Republican Party of

N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).° Accordingly,

in reviewing a Rule 12(b) (6) motion, the Court must “accept the

facts alleged in the complaint as true and construe them in the

light most favorable to the plaintiff.” Coleman v. Maryland Court

of Appeals, 626 F.3d 187, 189 (4th Cir. 2010), aff’d sub _nom.,

Coleman v. Court of Appeals of Md., 566 U.S. 30 (2012). The Court

must also “draw all reasonable inferences in favor of the

plaintiff.” E.1I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,

637 F.3d 435, 440 (4th Cir. 2011) (internal quotation marks

omitted). Moreover, a pro se complaint must “be liberally

construed” and “held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (internal quotation marks omitted); but see Giarratano v.

Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (explaining that the

3 Thus, “claims lacking merit may be dealt with through

summary judgment under Rule 56” rather than through a Rule 12(b) (6)

motion. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002).

United States Court of Appeals for the Fourth Circuit has “not read

Erickson to undermine [the] requirement that a pleading contain

more than labels and conclusions” (internal quotation marks

omitted)).

To avoid Rule 12(b)(6) dismissal, a complaint must contain

sufficient factual allegations “to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). To qualify as plausible, a claim needs sufficient factual

content to support a reasonable inference of the defendant’s

liability for the alleged misconduct. Id. Nevertheless, the

complaint need not contain detailed factual recitations, as long as

it provides “the defendant fair notice of what the claim is and the

grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal

quotation marks and ellipsis omitted). “At bottom, determining

whether a complaint states . . . a plausible claim for relief . . .

will ‘be a context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.’” Francis v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556

U.S. at 679).

Finally, in ruling on a Rule 12(b)(6) motion, “a court

evaluates the complaint in its entirety, as well as documents

attached or incorporated into the complaint.” E.I. du Pont, 637

F.3d at 448. The Court may also consider documents “attached to

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the motion to dismiss, so long as they are integral to the

complaint and authentic.” Philips v. Pitt Cty. Mem’l Hosp., 572

F.3d 176, 180 (4th Cir. 2009). Generally, a “court cannot go

beyond these documents” without “convert[ing] the motion into one

for summary judgment,” an action from which courts should refrain

“where the parties have not had an opportunity for reasonable

discovery.” E.I. du Pont, 637 F.3d at 448. Nevertheless, in

reviewing Rule 12(b)(6) motions, courts “may properly take judicial

notice of matters of public record.” Philips, 572 F.3d at 180.

B. Excessive Force Standards

i. Initial Matters

Plaintiff maintains that Defendants violated his rights under

the Eighth Amendment by “maliciously and sadistically” using

“excessive force” to cause him bodily harm. (Docket Entry 2 at

12.) However, Defendants characterize Plaintiff’s claim as a

fourteenth-amendment excessive force claim. (See Docket Entry 15

at 4 (“Claims made by pretrial detainees are governed by the 14th

amendment.”).) Courts evaluate a pretrial detainee’s excessive

force claim under the Due Process Clause of the Fourteenth

Amendment,4 but assess a convicted prisoner’s excessive force claim

pursuant to the Eighth Amendment’s Cruel and Unusual Punishment

Clause. See Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). As

4 Plaintiff also asserts that Defendants violated “[his] due

process rights.” (Docket Entry 2 at 12.)

6

the United States Supreme Court has explained, “[t]he language of

the two Clauses differs, and the nature of the claims often

differs. And, most importantly, pretrial detainees (unlike

convicted prisoners) cannot be punished at all, much less

‘maliciously and sadistically.’” Kingsley v. Hendrickson, 576 U.S.

389, _, 135 S. Ct. 2466, 2475 (2015).

It remains unclear whether Plaintiff qualified as a pretrial

detainee at the time of the incident in question. The Complaint

alleges that the incident occurred at a North Carolina jail during

Plaintiff’s confinement there. (See, e.g., Docket Entry 2 at 6,

12.) The Complaint further identifies Plaintiff as a current

inmate at a federal penitentiary. (See id. at 2.) This Court’s

records reflect that Plaintiff appeared on Writs of Habeas Corpus

Ad Prosequendum from the custody of the Alamance County Jail for

federal criminal proceedings through March 24, 2017. See, ¢€.g.,

United States v. Olander Raymond Richardson, No. 1:16cr337, Docket

Entry 29 (M.D.N.C. Mar. 27, 2017).° They further reflect that, at

least as late as February 22, 2017, Plaintiff remained in state

custody on pending state charges. See United States v. Olander

Raymond Richardson, No. 1:16cr337, Docket Entry 25 at 7 (M.D.N.C.

Feb. 22, 2017). The materials before the Court do not identify

when North Carolina resolved those pending charges against

5 The Court may take judicial notice of these court records.

See Philips, 572 F.3d at 180.

Plaintiff, although Defendants assert in connection with their

Dismissal Motion that “Plaintiff is currently incarcerated for

convictions” on those charges (Docket Entry 15 at 1).6 Because the

current record does not establish whether the state charges

remained pending as of April 11, 2017, it remains unclear whether

Plaintiff qualifies as a pretrial detainee in regards to his

excessive force claims. As discussed below, however, Plaintiff’s

individual-capacity claims survive Rule 12(b)(6) dismissal even

under the eighth-amendment standard, and thus would also survive

dismissal under the fourteenth-amendment standard, see Kingsley,

576 U.S. at __ - __, 135 S. Ct. at 2472-76; see also id. at __, 135

S. Ct. at 2475 (“[P]retrial detainees (unlike convicted prisoners)

cannot be punished at all, much less ‘maliciously and

sadistically.’”).

ii. Eighth-Amendment Standards

“The Eighth Amendment protects prisoners from unnecessary and

wanton infliction of pain.” Thompson v. Commonwealth of Va., 878

F.3d 89, 97 (4th Cir. 2017) (internal quotation marks omitted).

“That protection imposes on prison officials an affirmative

‘obligation to take reasonable measures to guarantee the safety of

6 Even assuming Defendants’ counsel’s unsworn statement in

Defendants’ dismissal memorandum revealed the date of the alleged

convictions, the Court could not rely on such statement at this

stage of the proceedings. See, e.g., E.I. du Pont, 637 F.3d at 449

(“[S]tatements by counsel that raise new facts constitute matters

beyond the pleadings and cannot be considered on a Rule 12(b)(6)

motion.”).

8

. . . inmates.’” Id. (ellipsis in original) (quoting Whitley v.

Albers, 475 U.S. 312, 320 (1986)). Accordingly, in evaluating an

eighth-amendment excessive force claim, the Court “must determine

‘whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause

harm.’” Id. at 98 (quoting Hudson v. McMillian, 503 U.S. 1, 7

(1992)). In conducting this analysis, the Court considers “whether

the prison official acted with a sufficiently culpable state of

mind (subjective component) and whether the deprivation suffered or

injury inflicted on the inmate was sufficiently serious (objective

component) .” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008)

(internal quotation marks omitted).

Notably, a prisoner need not suffer a significant injury to

prevail on an excessive force claim. Thompson, 878 F.3d at 98; see

also Hudson, 503 U.S. at 9 (“When prison officials maliciously and

sadistically use force to cause harm, contemporary standards of

decency always are violated. This is true whether or not

Significant injury is evident.” (citation omitted) (citing Whitley,

475 U.S. at 327)). “The excessive force analysis thus focuses on

the maliciousness of the force used, not the severity of the injury

that results from that force.” Thompson, 878 F.3d at 101; see

also Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (“An inmate who is

gratuitously beaten by guards does not lose his ability to pursue

an excessive force claim merely because he has the good fortune to

escape without serious injury.”). As such, an injury qualifies as

“sufficiently serious for purposes of the objective component of an

[e]ighth[-a]mendment excessive force claim as long as it rises

above the level of de minimus harm.” Iko, 535 F.3d at 238.7

As for the subjective component, “[t]he state of mind required

in excessive force claims is ‘wantonness in the infliction of

pain.’” Id. at 239 (quoting Whitley, 475 U.S. at 322); see also

id. (“Put differently, the ‘core judicial inquiry’ regarding the

subjective component of an excessive force claim is ‘whether force

was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.’”

(quoting Hudson, 503 U.S. at 7)). The United States Supreme Court

has identified four factors to assist courts in determining whether

an officer acted with “wantonness”:

(1) “the need for the application of force”; (2) “the

relationship between the need and the amount of force

that was used”; (3) the extent of any reasonably

perceived threat that the application of force was

intended to quell; and (4) “any efforts made to temper

the severity of a forceful response.”

Id. (quoting Whitley, 475 U.S. at 321). “From such considerations

inferences may be drawn as to whether the use of force could

plausibly have been thought necessary, or instead evinced such

wantonness with respect to the unjustified infliction of harm as is

7 Notably, although “an excessive force plaintiff need not

show significant injury, the extent of injury may supply insight as

to the force applied.” Cowart v. Erwin, 837 F.3d 444, 453 (5th

Cir. 2016).

10

tantamount to a knowing willingness that it occur.” Whitley, 475

U.S. at 321.

C. Analysis

Defendants move to dismiss Plaintiffs’ claims against them in

both their individual and official capacities. (See Docket Entry

15 at 3-5; see also Docket Entry 12 at 1 (seeking dismissal of

Complaint with prejudice).) More specifically, Defendants maintain

that Plaintiff’s official-capacity claims fail because he “makes no

allegation that his alleged harm was cause[d] by a direct

constitutional violation by the Sheriff’s Office” (Docket Entry 15

at 4), and they contend that his individual-capacity claims fail

because “he does not allege he suffered injury due to malice or by

any manner other than the attempt to move him” (id. at 5).

Defendants’ contentions possess merit as to the official-capacity

claims, but not the individual-capacity claims.

i. Official-Capacity Claims

Under Section 1983, official-capacity liability occurs only if

“execution of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury.” Collins v. City

of Harker Heights, 503 U.S. 115, 121 (1992) (internal quotation

marks omitted). Relevant here, “an official’s discretionary acts,

exercised in carrying out official duties, do not necessarily

represent official policy.” Perdue v. Harrison, No. 1:17cv403,

11

2017 WL 4804363, at *2 (M.D.N.C. Oct. 24, 2017). “Rather, the

official must have ‘final authority’ over government policy with

respect to the action in question to trigger official capacity

liability.” Id. (certain internal quotation marks omitted).

The Complaint alleges injury from Defendants’ actions, but

contains no allegations that Defendants acted pursuant to any

official custom or policy of the Alamance County Jail. (See

generally Docket Entry 2.) Nor does the Complaint allege that

Defendants possessed “final authority” over any such custom or

policy. (See id.) To the contrary, the Complaint reflects that

Defendants remained subordinate to others in the Alamance County

Jail. (See id. at 7 (asserting that Plaintiff wrote grievance to

“Captain Rich and LT Young” indicating that he “was beat[en] by two

of [their] officers and [he] need[s] justice,” which resulted in

someone(s) “com[ing] to speak with [him]”).) Accordingly, the

Court should grant Defendants’ request to dismiss Plaintiffs’

official-capacity claims.

ii. Individual-Capacity Claims

In their memorandum in support of the Dismissal Motion,

Defendants urge dismissal of Plaintiff’s individual-capacity claims

on the grounds that:

Plaintiff admits that his cell block was placed on lock

down and that he was ordered to pack his belongings,

which he did not do. He further admits that he pulled

away from officers when they tried to relocate him.

Although he contends he was injured, he does not allege

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he suffered injury due to malice or by any manner other

than the attempt to move him.

(Docket Entry 15 at 5.) This contention lacks merit.®

Construed in the light most favorable to Plaintiff, the

Complaint alleges that, in response to an unspecified incident,

officials began to lock down Plaintiff’s housing block in the

8 Plaintiff responded to the Dismissal Motion, which he

apparently mistook as a motion for summary judgment (see Docket

Entry 16 (the “Opposition”) at 1 (bearing caption “Plaintiff’s

Motion in Opposition to Defendants’ Summary Judgment Motion”)), by

filing the Opposition, as well as “Plaintiff’s Statement of

Disputed Factual Issues” (Docket Entry 17) (the “Statement”) and

“Plaintiff’s Declaration in Opposition to Defendants’ Motion for

Summary Judgment” (Docket Entry 18) (the “Declaration”). In reply,

Defendants maintain that “[t]here are several discrepancies between

the Complaint, which was attested to under oath, and the recently

filed [material].” (Docket Entry 20 at 4.) According to

Defendants, “[i]n addition to the deficiencies in Plaintiff’s

Complaint, meriting dismissal, Plaintiff’s disingenuous statements

before this Court further mandate dismissal.” (Id. at 5.) In

response, Plaintiff filed an unauthorized surreply, in which he

contends “that he did not make any contradictory statements under

oath” (Docket Entry 21 at 1) and explains how the statements in his

Declaration and Complaint align (see id. at 1-3).

As a preliminary matter, Defendants provide no support for the

proposition that such alleged inconsistencies in a plaintiff’s

filings justify Rule 12(b) (6) dismissal. (See Docket Entry 20 at

3-5.) In addition, contrary to Defendants’ contentions (see id. at

4-5), Plaintiff did not verify his Complaint (see Docket Entry 2 at

11). Thus, the record contains only one sworn recitation of

Plaintiffs’ allegations. However, the Court can consider neither

the Declaration nor the Statement in resolving the Dismissal

Motion. See E.Il. du Pont, 637 F.3d at 448-50. Further, even if

the Court could consider the Declaration, it would not alter the

outcome, given that, construed in the light most favorable to

Plaintiff, the Declaration and Complaint both allege that

Defendants continued to beat Plaintiff after placing him in

handcuffs (see Docket Entry 2 at 13; Docket Entry 18 at 1-2), an

allegation which, as discussed below, plausibly alleges a viable

excessive force claim.

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Alamance County Jail. (Docket Entry 2 at 12.) Sgt. Taylor

instructed Plaintiff, who was participating in a telephone

conversation, to pack his belongings. (Id.) After Plaintiff

responded that Sgt. Taylor should pack Plaintiff’s belongings, Sgt.

Taylor began throwing Plaintiff’s belongings (id. at 12), prompting

Plaintiff’s verbal objection that Sgt. Taylor “had no reason to

throw [Plaintiff’s] personal stuff” (id. at 13). In response, Sgt.

Taylor grabbed Plaintiff and began forcing him down the stairs.

When they “got outside of [Plaintiff’s housing] block[,

Plaintiff] pull[ed his] arm.” (Id.)

Sgt. Taylor then began punching Plaintiff, who responded by

shielding his face. (Id.) At that point, Officer Hopkins

approached Plaintiff’s right side and also began punching him.

After Defendants “g[fo]t [Plaintiff] to the ground,” they

handcuffed him. (Id.) Defendants’ then began “to hit [Plaintiff]

9 Defendants contend that “Plaintiff makes no mention of any

purported beating by Defendant Hopkins in his Complaint, he merely

claims that Sgt. Taylor ‘began to hit him with the stick’” after

handcuffing him. (Docket Entry 20 at 4.) In response, Plaintiff

states that, although he currently lacks access to his “legal work”

due to a lock down at his current prison, “he is sure that he made

mention of Defendant Hopkin[s’s] participation” in the beating in

the Complaint. (Docket Entry 21 at 3; accord id. at 2.)

Particularly given the liberal construction afforded pro □□

materials, the Complaint sufficiently alleges Officer Hopkins’s

post-handcuff participation in Plaintiff’s beating. (See Docket

Entry 2 at 13.) First, the Complaint clearly indicates that two

distinct individuals, an “Officer” anda “Sgt.,” commenced beating

Plaintiff with sticks after handcuffing him. (See id. (“[After

Sgt. Taylor] beg[a]n to throw punches. . .[,] Officer Hopkins came

to [Plaintiff’s] right side and began to help punch [Plaintiff.

(continued...)

14

with the stick they use to hit the buttons in the block to keep up

with the rounds.” (Id.) Defendants’ beating caused Plaintiff to

“blfee]d all over the floor” (id.) and broke Plaintiff’s nose so

badly that it required a specialist at the Alamance Regional

Hospital to treat it (see id. at 5).

Contrary to Defendants’ contention that the above allegations

fail to establish “malice” (Docket Entry 15 at 5), the Courts of

Appeals have long held that beating a subdued or incapacitated

inmate violates the Eighth Amendment. See Thompson, 878 F.3d at

102-06 (discussing cases); see also, e.g., Cowart v. Erwin, 837

F.3d 444, 449-50, 453-55 (5th Cir. 2016) (affirming excessive force

verdict where, in 2009, officer punched restrained inmate after he

“mouthed off” and disobeyed orders to kneel down, explaining that

“courts have frequently found constitutional violations in cases

where a restrained or subdued person is subjected to the use of

9(...continued)

T]hey gfo]t [Plaintiff] to the ground and [hand]cuffl[ed Plaintiff]

and Officer Taylor [sic] [as] well [as] Sgt. Taylor began to hit

[Plaintiff] with the stick they use to hit the buttons in the block

oe el) Second, with the lone exception of this obvious

typographical reference to “Officer Taylor” (id.}, the Complaint

consistently distinguishes between “Sgt. Taylor and Officer

Hopkins” (id. at 12; see generally Docket Entry 2), and

specifically identifies them as the only two individuals who used

excessive force against Plaintiff (see id. at 12 (“Sgt. Taylor and

Officer Hopkins w[ere] the two officer[s] who used excessive use of

force causing bod[illy harm,” which required Plaintiff “to go to

Alamance [Regional] Hospital”); see also id. (explaining that

“Officer Allen was present but never cause[d] no harm”)).

Accordingly, fairly read, the Complaint asserts that both

Defendants beat Plaintiff after handcuffing him.

15

force,” id. at 454 (internal quotation marks omitted)); McDowell v.

Sheerer, 374 F. App’x 288, 293 (3d Cir. 2010) (ruling, with respect

to inmate who, in 2004, escaped his cell and resisted returning to

it, that, “if [the inmate] is able to establish that [the

djefendants punched, kicked, hit him in the head with nightsticks,

and twisted his testicles, when he was restrained and not

resisting, he will have established a violation of the Eighth

Amendment”); Perry v. Thompson, 786 F.2d 1093 (llth Cir. 1986)

(reversing grant of summary judgment to officers where the

plaintiff averred, inter alia, that, in or before 1982, officers

beat him while handcuffed, explaining that “[the p]laintiff set out

facts tending to establish a prima facie case that the force was

excessive,” id. at 1095); Slakan v. Porter, 737 F.2d 368, 371-72

(4th Cir. 1984) (concluding that, in 1979, officers violated a

plaintiff’s constitutional rights where they, inter alia, “beat[]

him savagely around the head and body with billy clubs,” id. at

372, after incapacitating him). Here, the Complaint asserts that,

inter alia, Defendants beat Plaintiff (with sticks) after

handcuffing him. As such, construed in the light most favorable to

Plaintiff, the Complaint plausibly alleges that Defendants acted

“maliciously and sadistically to cause harm,” Hudson, 503 U.S. at

7, in violation of Plaintiff’s eighth-amendment rights.

Consideration of the Whitley factors confirms this conclusion.

As to the first factor, “the need for the application of force,”

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Iko, 535 F.3d at 239 (internal quotation marks omitted), the

Complaint alleges that Defendants beat Plaintiff after “they g[o]lt

[him] to the ground and [hand]cuff[ed him]” (Docket Entry 2 at 13).

Regardless of Defendants’ discretion to use some force to regain

control after Plaintiff “pull[ed his] arm” away from Sgt. Taylor

(id.), the Complaint reflects no further aggression or

noncompliance by Plaintiff (see id. (alleging only that Plaintiff

shielded his face from Defendants’ punches)), particularly after

Defendants forced Plaintiff to the ground and placed him in

handcuffs (see id.). As the Fourth Circuit has explained, “*‘[t]he

use of force must stop when the need for it to maintain or restore

discipline no longer exists.’” Thompson, 878 F.3d at 105 (quoting

Skrtich v. Thornton, 280 F.3d 1295, 1304 (11th Cir. 2002)).

Accordingly, this factor weighs against dismissal.

The second factor, “the relationship between the need and the

amount of force that was used,” Iko, 535 F.3d at 239 (internal

quotation marks omitted), likewise weighs against dismissal. Here,

the Complaint alleges that, after Plaintiff pulled his arm away

from Sgt. Taylor, Defendants began punching Plaintiff, forced him

to the ground, handcuffed him, and continued to beat him, this time

with sticks. (See Docket Entry 2 at 13.) This beating caused

Plaintiff to bleed profusely and broke his nose so badly that it

required treatment by a specialist and caused ongoing difficulties.

(See id. at 5, 13.) These allegations “tend to show that the

17

amount of force used was disproportionate to the need for force.”

Iko, 535 F.3d at 240; see also Cowart, 837 F.3d at 453 (explaining

that, in excessive force case, “the extent of injury may supply

insight as to the force applied”).

The third factor, “the extent of any reasonably perceived

threat that the application of force was intended to quell,” Iko,

535 F.3d at 239, likewise weighs against dismissal. Put simply, in

light of the Complaint’s allegations that Plaintiff merely shielded

his face in response to Defendants’ punches (see Docket Entry 2 at

13), “the threat reasonably perceived by [Defendants] must have

decreased as the [beating] continued,” Iko, 535 F.3d at 240.'° This

remains particularly true for the period after Defendants forced

Plaintiff to the ground and handcuffed him. See id.

Finally, the fourth factor, “any efforts made to temper the

severity of a forceful response,” id. at 239 (internal quotation

marks omitted), also weighs against dismissal. The Complaint

alleges that, in response to Plaintiff pulling away from Sgt.

Taylor, both Defendants began punching Plaintiff, taking him to the

ground and handcuffing him, before beginning to hit him with

sticks. (See Docket Entry 2 at 13.) Thus, rather than showing an

10 That some unspecified event triggered a lockdown of the

housing block from which Sgt. Taylor removed Plaintiff (see Docket

Entry 2 at 12-13), does not alter this conclusion, given that the

Complaint indicates neither that Plaintiff participated in the

triggering event nor that such event remained ongoing when

Defendants allegedly beat Plaintiff outside of the affected housing

block.

18

attempt to temper the use of force, the Complaint reflects an

escalation in force following Plaintiff’s incapacitation.

Accordingly, the fourth factor also weighs against dismissal.

“All told,” at this stage of the proceedings, “these factors

combine to provide an inference that [Defendants] wantonly

inflicted pain upon [Plaintiff by beating him severely, including

after handcuffing him].” Iko, 535 F.3d at 240. The Court should

therefore reject Defendants’ request to dismiss Plaintiff’s

individual-capacity excessive force claims.

CONCLUSION

The Complaint plausibly alleges excessive force claims against

Defendants in their individual, but not official, capacities.

IT IS THEREFORE RECOMMENDED that the Dismissal Motion (Docket

Entry 12) be granted in part and denied in part as follows:

Plaintiff’s excessive force claims should proceed against

Defendants in their individual capacities only.

This 26th day of May, 2020.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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