MARSHALL v. GREENSBORO POLICE SGT. RYAN 4TH PRECINCT

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHAUNCEY LEE MARSHALL, )

)

Plaintiff, )

)

v. ) 1:18CV709

)

GREENSBORO POLICE SGT. RYAN 4TH )

PRECINCT, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

I. Procedural Background/Pending Motions

This is a pro se civil rights action filed under 42 U.S.C. § 1983 by Plaintiff Chauncey Lee

Marshall, an inmate in the North Carolina Department of Public Safety. The Complaint

attempts to set out claims against several persons, sets of persons, or entities. It alleges that

Defendants Sergeant Ryan and Officer Underhill, patrol officers with the Greensboro Police

Department, arrested Plaintiff using excessive force and then refused him proper medical

treatment until he confessed to a robbery. The Complaint also alleges that, during Plaintiff’s

pretrial detention in the Guilford County Detention Center in Greensboro, North Carolina,

then-Sheriff B.J. Barnes improperly housed Plaintiff and denied him sufficient medical

treatment. Finally, the Complaint claims that Defendant “Nurse Erin/Mental & Medical

Healthcare Providers” also provided inadequate medical treatment. The Court ordered the

matter to proceed based on this initial Complaint.

An initial round of service or attempted service of summonses in the case resulted in

summonses being issued for Defendants Barnes, Underhill, Ryan, and an entity labeled by

Plaintiff as “Guilford County Jails Healthcare Provider.” All of those summonses were

returned executed except the summons for Defendant Barnes. The summons for “Guilford

County Jails Healthcare Provider” reflects that it was served on “Tom Sybesma Regional

Manager.” [Doc. #9.] Plaintiff then filed a Motion [Doc. #14] seeking to substitute Sheriff

D. Rogers for Sheriff B.J. Barnes because Plaintiff learned that Rogers, not Barnes, was the

current Sheriff of Guilford County. The Court granted that Motion. Summonses were then

issued for Guilford County Sheriff D. Rogers, Guilford County Jail Medical Provider C/O

Tom Sybesma Regional Manager, and Guilford County Jail Mental Health Provider. [Doc.

#20.] The summonses for Rogers and the Guilford County Jail Medical Provider were

returned executed, with Tom Sybesma again being listed as the person receiving the latter

summons. [Doc. #25.] However, the summons for Guilford County Jail Mental Health

provider was returned unexecuted. (Id.)

Following the above events, Defendants Ryan and Underhill successfully pursued a

Motion to Dismiss that resulted in the dismissal of official capacity claims against them. (See

Order [Doc. #60].) The other claims in the case proceeded through discovery and the parties

have now filed a number of dispositive motions which are pending. Specifically, they are: a

Motion to Enforce Order for Dismissal of All Unserved Defendants [Doc. #76] filed by Tom

Sybesma, a Motion for Summary Judgment [Doc. #79] filed by Defendant Rogers, a Motion

for Summary Judgment [Doc. #91] filed by Defendants Underhill and Ryan, a Motion [Doc.

#102] filed by Plaintiff to deny Sybesma’s Motion to Enforce, a Motion for Summary

Judgment [Doc. #110] filed by Plaintiff, and a Motion to Seal [Doc. #85]. All of these Motions

will be discussed in turn.

II. Sybesma’s Motion to Enforce and Plaintiff’s Motion to Deny

Tom Sybesma, an employee of Wellpath (formerly known as Correct Care Solutions,

LLC), the healthcare provider at the Guilford County Detention Center, filed a Motion under

Federal Rule of Civil Procedure 4(m) to dismiss all Defendants not served in the case.

Sybesma received a summons in the case addressed to him, as well as a summons addressed

to “Guilford County Jails Healthcare Provider,” but contends that these summonses are

inadequate and that he, Wellpath/Correct Care, and “Guilford County Jails Healthcare

Provider” are not proper Defendants in the case and/or were not properly served.

The summons to “Guilford County Jails Healthcare Provider” was returned executed

on December 13, 2018, while the summons to Sybesma was returned executed on February

6, 2019. Sybesma waited many months, and until after the close of discovery in this case, to

file his current motion. He does not explain his delay, differentiate his Motion as substantively

different from one contesting service of process under Rule 12(b)(5) of the Federal Rules of

Civil Procedure, or argue that his Motion is timely under that Rule. Complicating matters

further is that Plaintiff is an incarcerated pro se inmate who apparently believes, albeit

erroneously, that he moved to substitute Tom Sybesma and Correct Care Solutions for the

unknown “Mental and Medical Healthcare Providers” listed in the Complaint.1 The Court

would be inclined to give Plaintiff considerable leeway in determining whether he has

1 The record reveals that he filed a Motion [Doc. #14] to Substitute Defendant Rogers for former Sheriff B.J Barnes.

However, the docket does not include a motion related to the healthcare providers.

demonstrated “good cause” sufficient to avoid dismissal under Rule 4(m) and be allowed

further time to name and serve a proper healthcare defendant. See Fed. R. Civ. P. 4(m) (“if

the plaintiff shows good cause for the failure, the court must extend the time for service for

an appropriate period”). Further, any dismissal under Rule 4(m) is without prejudice, which

means that Plaintiff could simply bring his suit again, leading to additional further litigation.

Addressing Movant Sybesma’s Motion and Plaintiff’s related Motion seeking to deny

it would raise all of these issues and likely result in either a serious delay of the present case or

piecemeal litigation involving a second case--outcomes the Court seeks to avoid if possible.

As it happens, the issue of Plaintiff’s healthcare while at the Guilford County Detention Center

is also the subject of Defendant Rogers’ Motion for Summary Judgment and will be fully

addressed on its merits in association with that motion. As will be discussed, the results of

that analysis negate any need to allow Plaintiff further time to amend his Complaint, add

parties, or serve parties. Therefore, the Court will not discuss the Motions related to service

issues and unserved parties further, but will proceed to address the pending summary

judgment motions.

III. Summary Judgment Standard

Summary judgment is appropriate when no genuine issue of material fact exists. A

genuine issue of fact exists if the evidence presented could lead a reasonable fact-finder to

return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). A court considering a motion for summary judgment must view all facts and

draw all reasonable inferences from the evidence before it in the light most favorable to the

non-moving party. Id. The proponent of summary judgment “bears the initial burden of

pointing to the absence of a genuine issue of material fact.” Temkin v. Frederick County

Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)). If the movant carries this burden, then the burden “shifts to the non-moving party

to come forward with facts sufficient to create a triable issue of fact.” Id. at 718-19 (citing

Anderson, 477 U.S. at 247-48). A mere scintilla of evidence supporting the non-moving

party’s case is insufficient to defeat a motion for summary judgment. See, e.g., Shaw v. Stroud,

13 F.3d 791, 798 (4th Cir. 1994); see also Anderson, 477 U.S. at 248 (non-moving party may

not rest upon mere allegations or denials).

A. Defendant’s Ryan and Underhill’s Motions for Summary Judgment

1. Plaintiff’s Facts

Plaintiff submitted essentially no evidence in this case beyond exhibits attached to his

Motion for Summary Judgment.2 Those exhibits consist of only a copy of some of the

summonses in the case and a copy of mental health treatment policies from the Guilford

County Detention Center. Other than these exhibits, Plaintiff presents only the allegations set

out in his Complaint, which are as follows.

Plaintiff’s allegations pertaining to his arrest are that Defendants Ryan and Underhill

“slammed [him] on [his] back, head, and arms while handcuffed behind [his] back causing a

concussion, broken wrist, [and] nerve damage.” (Complaint [Doc. #2], § IV.) He adds on an

attached page that “once [he] was down,” they continued “to knee and elbow [him] even

though [he] was fully subdued and screaming about the pain of [his] arm.” (Id.) He also

2 At points in his briefing, Plaintiff requests further discovery. However, the period for discovery in the case expired long

ago and Court will not restart discovery.

contends that Defendants Ryan and Underhill “denied medical attention until [Plaintiff]

confessed to alleged crimes” and that they did so “even after they observed [his] injuries, and

[he asked] for medical attention. (Id.)

2. Defendants Ryan and Underhill’s Facts

In support of their Motion for Summary Judgment, Defendants Ryan and Underhill

present the following facts as established by their Affidavits (Ryan Aff. [Doc. #95]; Underhill

Aff. [Doc. #100]), the investigation records surrounding Plaintiff’s arrest (Estes Aff. [Doc.

#93], Attach.), the Affidavit of Sergeant R.E. Ferrell [Doc. #96] who helped interrogate

Plaintiff after his arrest, and a computer disc [Doc. #98] containing video recordings of

Plaintiff’s arrest and interrogation.

Ryan states that he had previously reviewed documents related to a robbery that

occurred at a Walgreens store on January 28, 2017, including a photograph of the suspect and

his vehicle. (Ryan Aff. ¶ 3.) On February 9, 2017, he assisted with a call at a local hotel. (Id.

¶ 4.) Defendant Underhill then radioed him and asked him to return to the hotel because

Underhill had spotted a vehicle and person matching the descriptions from the Walgreens

robbery. (Id.) Another officer, Officer Douglas, also responded. (Id.) During the interaction,

Ryan encountered Plaintiff and became concerned that he might flee after seeing him tie his

shoelaces. (Id. ¶ 5.) The officer therefore handcuffed Plaintiff behind his back while they

confirmed his identity. (Id.) Plaintiff claimed to be “Omar Patterson” with a birth date of

July 26, 1989. (Id. ¶ 6.) However, he later changed that date twice before eventually admitting

that he was Chauncey Marshall and giving a correct birth date. (Id.) Defendant Underhill

then returned to his vehicle and confirmed that Plaintiff appeared to be the person in the

robbery photograph and that there was a warrant for his arrest. (Id. ¶ 7.) He then told Plaintiff

he was under arrest. (Id.)

Underhill searched him and removed items from his pockets. (Id. ¶ 8.) At that point,

Defendant Ryan held Plaintiff’s right arm and Defendant Underhill held his left. (Id.) As the

officers began to place Plaintiff in Underhill’s patrol car, “Plaintiff began pulling away from

[them], twisting and turning to get out of [their] grasp.” (Id.) They took him to the ground,

with Ryan controlling his legs. (Id.) Ryan commanded him to stop resisting or be restrained

further. (Id.) Once Plaintiff calmed down, Ryan released his legs and the officers lifted him

to his feet. (Id.) At that point, Plaintiff yelled that his arm was broken and also “requested

his hat.” (Id. ¶ 9.)

Defendant Underhill’s Affidavit relates essentially identical events during the initial

arrest except that it adds that when the officers took Plaintiff to the ground, Underhill had his

arm across Plaintiff’s chest as Ryan held Plaintiff’s legs. (Underhill Aff. ¶ 8.)

As for the events following the initial arrest, Underhill states that he took Plaintiff to a

police substation, at which time Plaintiff asked for a cigarette, which Underhill denied him.

(Id. ¶ 10.) Plaintiff also responded negatively when asked if anything other than his arm hurt.

(Id.) Underhill states that Plaintiff was placed in an interrogation room and instructed to knock

on the door if he needed anything. (Id. ¶ 11.) Plaintiff asked to use the restroom several times

and for several glasses of water and a tissue. (Id.) He also asked when he would be questioned.

(Id.) However, he did not request medical treatment. (Id.) About three hours after Plaintiff

first entered the interrogation room, or around 11:40 a.m., Underhill noticed Plaintiff rubbing

his wrist and Plaintiff indicated that it was still bothering him. (Id. ¶ 12.) Underhill informed

Detective Ferrell of this fact and Emergency Medical Services (EMS) was contacted. (Id.)

Plaintiff stated at 12:17 p.m. that he wanted to complete his interview before going to the

hospital and refused to be transported by EMS. (Id. ¶ 13.) He later asked the Greensboro

Police to transport him to the hospital, which Underhill then did at 12:46 p.m. (Id. ¶ 14.)

3. Discussion

Plaintiff’s allegations are that Defendants Ryan and Underhill used excessive force in

arresting him and that they improperly denied him medical attention until he confessed.

Turning first to the allegation of excessive force, the Fourth Amendment prohibits police

officers from using unreasonable force in the course of making an arrest. “Determining

whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth

Amendment requires a careful balancing of the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the countervailing governmental interests at

stake. Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotations omitted). In

evaluating such a claim, “the question is whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them, without regard to their

underlying intent or motivation.” Id. at 397. Relevant factors include “the severity of the crime

at issue, whether the suspect poses an immediate threat to the safety of the officers or others,

and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.

Courts will not make this assessment with the benefit of hindsight; instead, defendants’ actions

will be viewed from that of a reasonable officer at the time. Id. at 396-97.

The Court will examine these factors in light of the events leading to Plaintiff being

taken into custody. Plaintiff omits entirely the facts that led to him being taken into custody.

Therefore, the facts supplied by Defendants Ryan and Underhill are undisputed and show that

they recognized Plaintiff and his vehicle from the earlier robbery of the Walgreens store at

knife point. Plaintiff made possible preparations to flee when officers approached him,

leading to him being handcuffed. After initially lying to the officers and causing a delay,

Plaintiff admitted his identity and was taken into custody. However, as the officers began to

place Plaintiff into a police cruiser, he turned and attempted to flee, causing them to take him

to the ground. The first allegation in the Complaint is that Defendants Ryan and Underhill

“slammed” Plaintiff onto the ground, injuring his wrist and head, before continuing to knee

and elbow him after he submitted and screamed about an injury to his arm. Defendants Ryan

and Underhill respond that they only took Plaintiff to the ground and laid on his legs and

upper body to control him until he calmed down enough to be returned to his feet and placed

in the patrol car.

There could be a potential dispute of fact about the force used except for the existence

of the footage from Ryan’s and Underhill’s body cameras. (Manually Filed Disc [Doc. #98],

Ryan_20170209063.mp4 and Underhill_20170128032(1).mp4.) That footage, which includes

both sound and video, is entirely clear and fully supports their version of events. As the

officers began to place Plaintiff into Underhill’s car, Plaintiff turned 180 degrees and attempted

to run between the officers. (Both Videos, Approx Time Stamp 13:32:55-:59.) Defendant

Ryan stopped him by grabbing or pushing high on Plaintiff’s body, while Defendant Underhill

caught hold of the handcuffs behind Plaintiff’s back and placed a hand behind Plaintiff’s left

knee, pulling that leg out from under him and causing him to go to the ground. (Id., 13:33:00-

:15.) Plaintiff was in no fair sense of the word “slammed” to the ground by the officers, but

rather went backward in a semi-controlled manner, appearing to land mostly on his buttocks,

but possibly also on his handcuffed wrists. Ryan immediately held Plaintiff’s legs, while

Underhill placed his forearm on Plaintiff’s chest. (Id.) They then simply held him to the

ground for about a minute until he calmed down and agreed to be placed in the car. (Id.,

13:33:15-:34:30.) They did not, in any way whatsoever, knee or elbow Plaintiff either to subdue

him or after he was subdued. Plaintiff also made no mention of any injury or pain at this point

and screamed only about being innocent of any robbery. Once Plaintiff calmed, the officers

lifted him to his feet. Plaintiff stated that his arm was broken at that time, but then immediately

became concerned about his hat and requested that the officers retrieve it from the ground

for him, which they did, placing it on his head. (Id., 13:34:30-:59.) The officers put him in

the car without further incident.

“[W]hen a video ‘quite clearly contradicts the version of the story told by [the plaintiff]

. . . so that no reasonable jury could believe it, a court should not adopt that version of the

facts for purposes of ruling on a motion for summary judgment.’” Witt v. W. Va. State Police,

Troop 2, 633 F.3d 272, 276 (4th Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 378, 380

(2007) (alteration in original)). A court should not “reject a plaintiff’s account on summary

judgment whenever documentary evidence, such as a video, offers [only] some support for a

governmental officer’s version of events.” Id. at 276 (emphasis in original). Rather, “when

documentary evidence ‘blatantly contradict[s]’ a plaintiff’s account ‘so that no reasonable jury

could believe it,’ a court should not credit the plaintiff’s version on summary judgment.” Id.

at 276-77 (quoting Scott, 550 U.S. at 380).

Here, the events depicted in the body camera videos can in no way be described as a

use of excessive force by Defendants Ryan and Underhill. Plaintiff, a suspect in an armed

robbery, attempted to flee while handcuffed, causing them to engage in the legitimate

governmental purpose of stopping his flight and restraining him in order to effect his arrest.

In doing so, they used only a minimum of force to take Plaintiff to the ground and restrain

him until he stopped resisting arrest and allowed himself to be placed into a car for transport.

The allegations in the Complaint that Ryan and Underhill slammed Plaintiff to the ground,

kneed, and elbowed are simply false in light of the video evidence, as is Plaintiff’s contention

that he complained about his arm prior to their lifting him to his feet. Therefore, Plaintiff’s

excessive force claims fail and Defendants Ryan and Underhill should be granted summary

judgment on those claims.

To the extent that there could be a constitutional violation, Defendants Ryan and

Underhill argue that they are entitled to qualified immunity. A court generally considers first

in the qualified immunity analysis whether a constitutional violation has occurred. Williams v.

Ozmint, 716 F.3d 801, 805 (4th Cir. 2013). The above discussion concludes that Plaintiff has

not established a constitutional violation. If there were a constitutional violation, the Court

next considers “whether that right violated was clearly established at the time of the official’s

conduct.” Id. “The proper inquiry focuses whether ‘it would be clear to a reasonable officer

that his conduct was unlawful in the situation confronted’ . . . or whether the state of the law

[at the time of the incident alleged] gave ‘fair warning’ to the officials that the conduct was

unconstitutional.” Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (internal citations

omitted). Here, the evidence clearly reflects a non-compliant detainee resisting verbal and

physical efforts to restrain him. Under these circumstances and in light of the findings above,

the Court concludes that it would not at all be clear to a reasonable officer that the conduct

of Ryan or Underhill was unlawful. Therefore, summary judgment would also be appropriate

based on qualified immunity.

Plaintiff’s other allegation against these Defendants is that they ignored his injured arm

and detained him in an interrogation room until he confessed. This claim fails similarly.

Because of his status as a pretrial detainee at the time of the events alleged, the Court evaluates

Plaintiff’s claim of deliberate indifference to his medical needs under the due process clause

of the Fourteenth Amendment, rather than under the Eighth Amendment standard applicable

to convicted prisoners. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); see Bell

v. Wolfish, 441 U.S. 520, 535 (1979). In practice however, the standards are the same for

both pretrial detainees and convicted persons. See Brown v. Harris, 240 F. 3d 383, 388-89

(4th Cir. 2001) (holding that a pretrial detainee is entitled to the protections of due process,

but concluding that the court need not decide whether the prisoner was convicted or a pretrial

detainee because the standard is the same). Plaintiff must establish that Defendants acted

with “deliberate indifference” to his “serious medical needs.” Estelle v. Gamble, 429 U.S. 97,

104 (1976); Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). The “serious medical need”

component is objective and is a medical condition that has been diagnosed by a physician as

requiring treatment or one that is so obvious that even a non-physician would recognize the

need for a doctor’s attention. Iko, 535 F.3d at 241. The deliberate indifference component is

judged subjectively, meaning that the defendant knew of and disregarded the risk posed by the

serious medical need. Id. This showing is a “particularly high bar to recovery,” and a showing

of mere negligence will not meet it. Id. To have been deliberately indifferent, the defendant

must actually know of the risk of harm to the inmate, and must also have known that his

actions were insufficient to mitigate the risk of harm to the plaintiff from his serious medical

need. Id.

Here, there is no evidence in the record that Defendant Ryan had any contact with

Plaintiff after placing him in Defendant Underhill’s patrol car. At that point, the only

knowledge that Defendant Ryan had of any injury to Plaintiff were the brief initial statements

by Plaintiff that his arm was broken. However, as noted earlier, Plaintiff did not persist in this

vein, but instead became concerned about his hat and demanded that the officers retrieve it

for him. He then made no further statement regarding his arm in Defendant Ryan’s presence.

This fact, coupled with Plaintiff’s immediate lack of follow-up or concern for any injury, was

not sufficient to put Defendant Ryan on notice of any serious medical need. Further, Ryan

was not later involved in Plaintiff’s transport, care or custody. Therefore, even if he knew of

a need, he was not present or involved with Plaintiff so that he could be found to have

exercised deliberate indifference toward the injury. He would also be entitled to qualified

immunity on this claim. For all of these reasons, Defendant Ryan’s Motion for Summary

judgment should be granted.

Regarding, Defendant Underhill, he remained in contact with Plaintiff and was at least

one of several officers responsible for his custody for several hours. Two brief body camera

videos exist of the time Plaintiff was placed in Defendant Underhill’s car, but before he arrived

at the police substation. (Manually Filed Disc, Underhill_20170128032(2).mp4 and

Underhill_20170128032(3).mp4.) In the first, Defendant Underhill uses a computer in his

squad car to show Plaintiff digital photographs from the Walgreens robbery. They discuss

whether or not the photographs depict Plaintiff and the vehicle he was driving when arrested.

Plaintiff vigorously insists that they do not and that he did not commit the robbery. He does

not mention his arm or any injury or a need for medical attention. In the second video,

Plaintiff states he was snorting cocaine that morning and he and Underhill discuss five dollars

that Plaintiff possessed. No other conversation is recorded. These videos do not demonstrate

any serious medical need or reflect that Plaintiff was in need of emergency medical treatment

at that point.

Brief body camera videos also exist of Plaintiff being removed from Defendant

Underhill’s cruiser and walked into an interrogation room in the police substation. (Manually

Filed Disc, Underhill_20170128032(4).mp4 and Felicianoc_20170128032.mp4.) When

Defendant Underhill opens the door, Plaintiff exits the car under his own power and assures

the officers he will not run again. (Underhill_20170128032(4).mp4, Time Stamp 13:55:44-

:45.) Plaintiff asks to smoke a cigarette before entering the building, to which Defendant

Underhill replies that he needs to talk to detectives first and that he can then smoke a cigarette

if the detectives allow it. (Id. at 56:00-06.) Underhill then asks if anything other than Plaintiff’s

arm is hurt, to which Plaintiff states his arm is broken and swollen. (Id. at 56:15-:20.)

Underhill asks which arm, to which Plaintiff replies, “left.” (Id. at 56:22-24.) He does not

exhibit any obvious pain, or request medical attention. Defendant Underhill leaves Plaintiff’s

presence once he reaches the interrogation room. (Id. at 57:30.) Body camera footage from

the other officer escorting Petitioner, Officer Feliciano, continues after Plaintiff enters the

room. Officer Feliciano begins to remove Plaintiff’s handcuffs before stating that he needs

to check with Underhill first. (Felicianoc_20170128032.mp4, Time Stamp 13:57:49-52.)

Plaintiff asks him to at least adjust the handcuffs because of swelling and Feliciano appears to

attempt to do this, but instead decides to remove the cuffs after Plaintiff makes a sound

indicting some pain. (Id. at 57:53-58:30.) Officer Feliciano asks if Plaintiff has been to the

hospital, to which Plaintiff replies that he has not, and then Defendant Underhill returns and

confirms that it is Plaintiff’s left arm that is injured. (Id. at 58:30-:44.) Plaintiff shows the

officers his wrist and they briefly examine it. (Id. at :44-:49.) Feliciano exits the room and the

video ends shortly thereafter.

Defendants also submitted just over three and a half hours of camera footage records

of Plaintiff’s stay in the interrogation room. (Manually Filed Disc, Cauncey Marshall cam1.)

During most of the footage, Plaintiff is alone in the room. Generally speaking regarding his

left hand and arm, Plaintiff at various times, fidgets, moves his hand and fingers, reaches into

his pockets, pulls his pants up or adjusts them, blows his nose, and removes his jacket. In

interacting with various officers and other persons in the room, he uses the arm to drink water,

and makes gestures when talking. Plaintiff requests water to drink and to use the bathroom

on multiple occasions, and asks multiple times each when he will be questioned and whether

or when he can smoke a cigarette. He is also questioned by detectives regarding the Walgreens

robbery and two bank robberies that he committed. At no point does he spontaneously

mention his arm or any other injury or request medical treatment, nor does he appear to be

suffering or in obvious pain. Plaintiff moves and uses the arm more or less normally and the

most that can be said in his favor is that he appears to act carefully or gingerly with his left

arm at times.

As far as notable particular occurrences, at 9:50 am an officer arrives to collect

Plaintiff’s DNA and fingerprints and take photographs of Plaintiff. Plaintiff cooperates

without issue, moving and using his hands freely, including to remove his jacket and lift his

shirt sleeves and shirt for photographs without difficulty or complaint. (Id. Time Stamp 9:51-

:54.) The officer also photographs Plaintiff’s wrist and the swelling and a red mark on the

back of Plaintiff’s head. (Id.) Plaintiff does not express discomfort or request medical

attention during this process.

At 11:42 am, Defendant Underhill asks Plaintiff if his wrist hurts. He replies that it

does and Underhill tells him that EMS will check his wrist. (Id. Time Stamp 11:42.) Plaintiff

immediately switches subjects, asking why his girlfriend is being questioned and insisting that

she does not know anything. (Id.) Detectives then arrive and question Plaintiff until EMS

arrives at 12:09 pm. Plaintiff does not complain about his arm or request treatment at any

point during the questioning that results in his confession to multiple robberies. During the

EMS examination, Plaintiff is calm and responsive with no strong reactions to the

manipulations of his hand and wrist by the medical workers. Plaintiff states that his wrist was

broken previously and that this was an old injury that was “reinjured last night” or “this

morning.” (Id. Time Stamp 12:11:32; Time Stamp 12:12:30.) Unable to determine if Plaintiff’s

wrist is broken or not, the EMS workers offer to transport him to the hospital. (Id. Time

Stamp 12:13:40-:14:45.) However, Plaintiff refuses, instead wanting to finish up with

questioning and processing before allowing the police to take him to the hospital. (Id. Time

Stamp 12:15:20.) He also insists, yet again, on being allowed to smoke a cigarette before going

for treatment. (Id. Time Stamp 12:15:30.) Plaintiff then converses about his telephones, his

ID, his girlfriend, and an officer’s accent before going to the bathroom again and then being

removed from the interrogation room at 12:30. 3

It is indisputable from the evidence as a whole that Defendant Underhill was aware of

an injury to Plaintiff’s arm from the time he placed him in his car until the time EMS arrived

about four hours later. However, that injury had not been diagnosed by a doctor and would

not have obviously needed treatment to a lay observer. In fact, even the EMS workers who

examined Plaintiff were unable to determine the nature of his injury. Plaintiff complained

immediately before being placed in Defendant Underhill’s car about wrist pain, but thereafter

voiced no serious complaints about his wrist and addressed the subject only when asked about

it by officers or the EMS workers. During the hours between his arrest and being taken to

the hospital, Plaintiff was perfectly comfortable making his needs known and requesting relief,

whether to obtain water, a tissue for his nose, or trips to the bathroom. However, he still

never requested medical treatment and continued to use his left arm and wrist in more or less

a normal fashion at most times. Plaintiff’s words and actions indicated that his injury was not

so serious that it required immediate treatment. Further, Plaintiff’s words and actions certainly

would not have alerted Defendant Underhill to a need for emergency medical treatment. The

assertion in the Complaint that Defendant Underhill kept him in an interrogation room and

3 It is undisputed that officers then transported Plaintiff to the hospital for x-rays as he requested. The medical

records from the hospital reflect that Plaintiff reported that he had fractured his wrist a month earlier and that

he was having increased pain after his altercation with law enforcement officers. (Cabarrus-Dubois Aff. [Doc.

#88], Ex. 1 at 207-208.) The hospital records reflect that Plaintiff had suffered a wrist fracture in December

2016. In comparing Plaintiff’s new x-rays to images from December 2016, the radiologist (Dr. Liebkemann)

noted that “I do not see a definite new fracture,” and his impression was that “[t]here has been some healing

response of the distal radial comminuted fracture”; that “[o]ne of the more medial fragments is somewhat more

proximally displaced than it was previously”; and that there was a “[s]light increase in the positive ulnar

variance.” (Id. at 208-09, 214). Thus, the medical records reflect a prior wrist fracture in December 2016 that

appears to have been aggravated by Plaintiff’s interaction with officers on February 9, 2017.

denied him medical treatment until he confessed is a blatant mischaracterization of the facts

as demonstrated very clearly by the videos discussed above. For all of these reasons, Plaintiff’s

claim that Defendant Underhill violated his constitutional rights by denying him medical

treatment fails as a matter of law. Further, to any extent that a constitutional violation could

be found to exist, Defendant Underhill would be entitled to qualified immunity under the

analysis set out earlier. Defendant Underhill’s Motion for Summary Judgment should be

granted.

B. Defendant Rogers’s Motion for Summary Judgment

1. Exhaustion

Before discussing Defendant Rogers’s arguments concerning the merits of Plaintiff’s

claims, the Court will first address an argument he raises that Plaintiff failed to properly

exhaust his administrative remedies. Under the Prison Litigation Reform Act of 1995 (PLRA),

“[n]o action shall be brought with respect to prison conditions under section 1983 of this title,

or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility

until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

Exhaustion is mandatory and the Court cannot waive that requirement. Porter v. Nussle, 534

U.S. 516, 524 (2002). Nevertheless, lack of exhaustion is an affirmative defense, Jones v. Bock,

549 U.S. 199, 216 (2007), which means it must be proved by Defendant. However, if Plaintiff

responds to that defense by claiming that administrative remedies were not “available,” he

must “show that a grievance procedure was not ‘available,’” by “adduc[ing] facts showing that

he was prevented, through no fault of his own, from availing himself of that procedure.”

Graham v. Gentry, 413 F. App’x. 660, 663 (4th Cir. 2011).

Defendant Rogers supplies documentation that, upon arrival at the Guilford County

Detention Center, inmates are given an Inmate Handbook which contained the Detention

Center’s Inmate Requests and Grievance Policy. (Doub Aff. [Doc. #82], ¶ 8, Ex. 3.) That

Policy states that an inmate seeking information or answers to questions should initiate an

informal process by addressing the matter with an officer or employee who can attempt to

provide an answer. (Doub Aff., Ex. 3, at 26.) If the employee cannot resolve the issue to the

inmate’s satisfaction, the employee can then issue an Inmate Request Form, which the Shift

Commander will answer in five business days. This process can also be used by inmates to

register and resolve complaints such as “an expression of pain, dissatisfaction or resentment

for a particular event or action.” (Id. at 27.)

Inmates can also initiate an informal grievance process by registering a complaint with

an officer or employee, who will attempt a remedy. (Id.) If this does not satisfy the inmate,

they must then complete an Inmate Request Form seeking a Grievance Form, which is issued

by Shift Commanders or Classification/Grievance Officers, with carbon copies being created

and retained. (Id.) Inmates must file a grievance within three days of the time they know or

should know of the incident leading the grievance. (Id.) Once an inmate completes a

Grievance Form, it is sent to the Division Commander who must respond within twenty-one

days. (Id.) It may also be forwarded to the Bureau Commanders if it challenges facility

policies and procedures. (Id.)

According to records retained by the Detention Center, Plaintiff filed thirteen Inmate

Request Forms while incarcerated there. (Diehl Aff. [Doc. #89], ¶ 11.) However, all were

resolved informally and none were followed by a request for a Grievance Form. (Id.) A review

of these documents reveals that Plaintiff filed Inmate Requests Forms raising issues connected

to visitation problems, pictures, books, and a mobile card in his property, movement to a new

bunk, an issue with his mail, clothing and writing materials, an indigent kit (four times), a bible,

an indigent kit with extra paper, keeping some of his visitors a secret from other visitors, and

more clothing and stamps. (Id., Ex. at 165-177.) None of these forms pertain to issues raised

in the Complaint. In the end, Plaintiff filed no Grievance Forms while at the Detention

Center. (Id.)

The Complaint alleges without elaboration that “it’s S.O.P to deny request[s] for

grievances or ignore the request period” (Complaint, §V, Attach. ¶ 3.), but the Complaint also

indicates that Plaintiff filed grievances concerning the issues raised therein and fully exhausted

his remedies (id. § VI). Confronted with documentary evidence of his complete failure to

exhaust, or even attempt to exhaust, his claims, Plaintiff responds on the exhaustion issue by

saying that his Response Brief [Doc. #104] is accompanied by documents showing that he

tried “to exhaust on several occasions for different reasons,” tried to exhaust on two other

occasions by writing “the administration,” and also that he was placed in administrative

segregation on two occasions for requesting grievance forms. (Plaintiff’s Response Br. at 1,

6.)4 In what was docketed as a Supplemental Response [Doc. #108] filed after Defendant

Rogers’ Reply, Plaintiff adds that conditions were generally bad in the medical area of the

Detention Center where he was housed and that he raised his medical “grievances” to nurses.

Contrary to Plaintiff’s contention, there are no exhibits attached to the Response Brief which

4 Plaintiff combined two separate documents into one filing. Therefore, pinpoint cites to that document are to the page

number listed in the footer of the Court’s Electronic Case Filing database.

demonstrate any attempt by Plaintiff to file a grievance using the Detention Center’s procedure

to grieve claims related to the Complaint. As for writing the administration and notifying

nurses of problems, those are not a part of the Detention Center’s grievance process. In the

end, Plaintiff submits absolutely no evidence that he exhausted or attempted to exhaust his

administrative remedies and it is readily apparent from Defendant Roger’s evidence that

Plaintiff neither utilized nor attempted to utilize the Detention Center’s administrative

grievance process for any claim listed in the Complaint. He did not exhaust his remedies as

required by statute, meaning that dismissal of his claims against Defendant Rogers is required

under § 1997(e). Further, as discussed below, Plaintiff’s claims fail even if the Court were to

find them exhausted.

2. Plaintiff’s Facts

The remaining issues in the case involve Plaintiff’s alleged treatment while housed in

the Guilford County Detention Center. The Complaint claims that the Sheriff and/or the

healthcare provider at the Detention Center denied Plaintiff “medical treatment for months

while keeping [him] locked in ‘medical administrative segregation’” and that what treatment

was given did not include a surgery recommended for Plaintiff’s arm by a specialist.

(Complaint, § V.) Plaintiff claims that the situation eventually “caused him to desire death and

attempt suicide after 3 attempts to see mental health.” (Id.) He adds on the attached page of

facts that he “filed several request[s] for the month of May” before giving up and cutting his

“wrist on May 30 after 3 weeks of verbal, and paper requests[s] being ignored.” (Id)]

At additional points in the recitation of facts, the Complaint alleges that Plaintiff was

held in segregation with canteen, phone, recreational, and email restrictions, as well as no

television, newspapers, or outside news and that he suffered a staph infection after being

placed in an unclean cell and being denied cleaning supplies following his suicide attempt.

(Id.)

3. Defendant Roger’s Facts

In support of his Motion for Summary Judgment, Defendant Rogers presents the

following facts, as set out in affidavits and extensive documentation. Following Plaintiff’s

arrest and confession, he was transported to Cone Health Emergency Department and treated

for a fractured wrist with displaced fragments. (Cabarrus-Dubois Aff. [Doc. #88], Ex. 1 at

207-214.) He then entered the custody of the Greensboro Sheriff’s Department and remained

there from February 9, 2017 until September 8, 2017, when he transferred to the custody of

the North Carolina Department of Public Safety. (Diehl Aff. [Doc. #89] ¶ 4.) Upon arrival

at the Detention Center, Plaintiff was screened and then placed in medical segregation due to

his injury. (Id. ¶ 5.) That status was then reviewed every 15 days. (Id. Aff. ¶ 5 and Ex. 1 at

217-220.) Medical care was provided to Plaintiff by Correct Care Solution, LLC, with whom

the Guilford County Sheriff’s Department contracted for all medical care of its prisoners.

(Barnes Aff. [Doc. #81] ¶ 8.)

A few days after Plaintiff’s arrival at the Detention Center, on February 15, 2017, he

completed a medical form stating that he was experiencing violent, helpless, hopeless, and

fatalistic thoughts. (Cabarrus-Dubois Aff, Ex. at 70.) This led to him being placed on suicide

watch for two days, after which he was removed from that status because he informed medical

staff that he had neither thoughts of self-harm nor a plan to harm himself and that it was a

mistake to document his thoughts in the manner he did. (Id.) Thereafter, staff conducted

mental health evaluations on seven occasions between the time Plaintiff was taken off suicide

watch and May 24, 2017. (Id. at 78-81.) Although an evaluation on March 14, 2017, stated

that Plaintiff had increased frustration concerning his wife and her refusal to help him get out

of jail, he was “not experiencing acute psychiatric problems.” (Id. at 13.)

On March 29, 2017, Plaintiff saw an outside specialist, Dr. Kuzma, for a follow-up on

his wrist injury. (Id. at 173.) CT imaging was performed at the time of the injury and again

April 13, 2017, with a nerve conduction study also being ordered. (Id. at 175, 184-88, 203-4.)

When Kuzma evaluated Plaintiff again on May 19, 2017, he noted problems with the healing

of Plaintiff’s wrist fracture and they discussed the option of surgery to correct the problems.

(Id. at 180-83.)

During this time, on April 28, 2017, Plaintiff filed another Healthcare Request form

seeking treatment for painful boils under his arms, which led to led to treatment with

antibiotics early in May of 2017. (Id. at 297, 268-77.) Then, on May 24, 2017, Plaintiff filed a

third Healthcare Request form stating, “I do not want to hurt anyone or myself I just need to

speak to someone in the Mental Health Department. . . .” (Id. at 296.) A mental health check

performed that day found that he was cooperative and calm with no suicidal or homicidal

ideation being noted. (Id. at 78.) However, six days later, on May 30, 2017, Plaintiff used a

razor to cut his injured left wrist in an attempt to kill himself after an argument with his wife.

(Id. at 196, 225.) Plaintiff was transported to a hospital, treated with sutures, and released back

to the Detention Center. (Id. at 192-201, 221-26.) The wound did later become infected,

leading to treatment on multiple occasions between May 31, 2017 and June 16, 2017, when

the wound healed enough for removal of the sutures. (Id. at 255-66.) Correct Care staff

thereafter engaged in a number of mental health checks and evaluations between June 2, 2017,

and Plaintiff’s transfer in September. (Id. at 75-78.) These led to Plaintiff being diagnosed

with bipolar disorder and receiving medication. (Id. at 2, 82-83.)

Correct Care staff also continued to work with Plaintiff’s wrist fracture issue after he

healed sufficiently from his self-inflicted wound and subsequent infection. On August 4, 2017,

a staffer made a note that she spoke to the scheduler for Dr. Kuzma at the Hand Center, that

the Hand Center had received a copy of the Plaintiff’s nerve conduction study, and that the

scheduler was attempting to find a time for Plaintiff to receive surgery for his hand. (Id. at

253.) A subsequent note on September 8, 2017 also notes this, as well as the fact that the

scheduler reported that the Doctor had been overbooked, but they were attempting to find a

time for the surgery. (Id. at 252.) However, Plaintiff was transferred out of the Detention

Center on that date and Correct Care and Defendant Roger’s handling of his medical issues

ended.

As for Plaintiff’s claims related to segregation during his confinement in the Detention

Center, he was, as noted above, initially placed in medical segregation due to his broken wrist,

then placed on suicide watch on February 15, 2017, based on statements he made to medical

personnel, and removed from suicide watch status two days later, also based on his own

statements. Next, on February 26, 2017, Plaintiff asked to be removed from medical

segregation, but was told to “consult medical” and the transfer apparently did not occur.

(Diehl Aff., Ex. at 167.) He did not file another such request. (Id. at 165-77.) On April 23,

2017, Plaintiff was disciplined for failing to enter a locked passageway when ordered and on

May 22, 2017, he was cited for interfering with staff during a lockdown. (Id., ¶ 7 and Ex. 1 at

48-53, 58-59.) In both situations, he initially denied guilt, leading to the scheduling of a

hearing, but then admitted guilt at the hearing. He received a loss of canteen, telephone, and

visitation privileges and administrative segregation for ten days for the first incident and a loss

of all privileges for twenty days for the second. (Id.) He was also placed in administrative

segregation as a result of cutting his wrist with the razor based on an attempt at self-harm.

(Id., ¶¶ 9-10 and Ex. 1 at 73-76.) For that, he also lost canteen, telephone, and visitation

privileges for 20 days after again admitting guilt at a hearing. (Id.)

4. Discussion

Regarding Plaintiff’s medical care, Defendant Rogers is clearly entitled to summary

judgment based under the standards set out previously. During Plaintiff’s stay in the

Detention Center, he suffered several medical issues that could arguably qualify as “serious

medical needs,” specifically, his broken wrist, mental health issues, boils, the self-inflicted cut

to his arm, and a subsequent infection of that cut. As stated earlier, the Guilford County

Sheriff at the time, B.J. Barnes, contracted with Correct Care Solutions to provide medical

care in the Detention Center during the time Plaintiff was housed there. Plaintiff received

almost constant care for one or more of his variety of medical needs during that time. His

medical needs were not ignored, but were instead all treated, mostly successfully.

Plaintiff points to several alleged deficiencies in his treatment, but they are either

unsupported by any actual evidence or do not rise to the level of constitutionally deficient

treatment. Regarding the treatment of the break in Plaintiff’s wrist, Plaintiff alleges that

Defendants failed to provide him with surgery to correct the nerve issue that developed when

it healed improperly. However, Plaintiff’s own medical records reveal that the problem was

not apparent until mid-May of 2017 and that Plaintiff then negated the possibility of any

surgery at that time by cutting his own wrist less than two weeks later. This wound did not

heal until mid to late June of 2017. The records then reveal that at least by August 4, 2017,

Correct Care was attempting to schedule the surgery, but that the doctor could not fit it on

his schedule. Plaintiff transferred out of the Detention Center and, therefore, out of Correct

Care’s care before the surgery could be scheduled and performed. In no way was Correct Care

and, by extension B.J. Barnes to Defendant Rogers, deliberately indifferent to the injury to

Plaintiff’s arm or the need for a subsequent surgery.

Plaintiff also faults Defendants for allegedly ignoring the mental issues that led him to

cut his wrist. However, the records show that Correct Care did not ignore these issues, but

instead spoke to Plaintiff regarding his mental health concerns just six days before he

attempted to kill himself. At that time, he expressly stated that he wanted to speak with

someone but did not want to harm himself, and he did not deviate from that when someone

spoke with him. He points to nothing from which Correct Care or anyone else could have

known of his plan to suddenly kill himself. In fact, at the time of his suicide attempt, Plaintiff

specifically attributed his actions to a fight he had with his wife, an occurrence which

Defendants could not have controlled or known about absent Plaintiff telling them, which he

does not claim that he did prior to his suicide attempt. Again, there is evidence in the record

that Correct Care paid attention to Plaintiff’s mental state throughout his incarceration,

including the time near to his suicide attempt. Plaintiff provides no support for his claim that

Correct Care or any Defendant engaged in deliberate indifference in connection with

Plaintiff’s mental health.

Finally, Plaintiff attributes the infection that occurred in his wrist following his suicide

attempt to unclean conditions in his cell. His allegation is entirely conclusory and he points

to no evidence that the conditions caused the infection. Regardless, Correct Care promptly

treated the infection, which healed sufficiently for Plaintiff to have the sutures removed from

his wrist a little over two weeks after he cut it. Again, the evidence precludes a claim of

deliberate indifference to any serious medical need. Therefore, Defendant Rogers is entitled

to summary judgment on Plaintiff’s claims of constitutionally deficient medical care. Not only

this, but for the reasons just set out, the evidence is undisputed and reflects that Correct Care,

its successor Wellpath, Tom Sybesma, and Nurse Erin, also did not show deliberate

indifference toward Plaintiff’s medical needs. This means that it would be futile to allow

Plaintiff to amend his complaint to properly name any of them or to attempt further service.

Moreover, even if Plaintiff had properly obtained service, dismissal is proper under 28 U.S.C.

§ 1915A because it is now clear that Plaintiff cannot receive relief on his claims against them.

As explained earlier, Plaintiff also complains that he was kept in segregated

confinement, which he faults, at least in the briefing of this case, for putting him under mental

stress that led to his suicide attempt. “By definition, pretrial detainees have not been convicted

of the crimes with which they are charged. For that reason, the Supreme Court held in Bell v.

Wolfish, [441 U.S. 520, 535-37 (1979),] they retain a liberty interest in freedom from

‘punishment,’ even while they are detained to ensure their presence at trial.” Dilworth v.

Adams, 841 F.3d 246, 251 (4th Cir. 2016). “[I]n determining whether particular restrictions

and conditions accompanying pretrial detention amount to punishment in the constitutional

sense of that word[,] . . . [a] court must decide whether the disability is imposed for the purpose

of punishment or whether it is but an incident of some other legitimate governmental purpose.

Absent a showing of an expressed intent to punish on the part of detention facility officials,

that determination generally will turn on whether an alternative purpose to which [the

restriction] may rationally be connected is assignable for it, and whether it appears excessive

in relation to the alternative purpose assigned [to it]. Thus, if a particular condition or

restriction of pretrial detention is reasonably related to a legitimate governmental objective, it

does not, without more, amount to ‘punishment.’ Conversely, if a restriction or condition is

not reasonably related to a legitimate goal--if it is arbitrary or purposeless--a court permissibly

may infer that the purpose of the governmental action is punishment that may not

constitutionally be inflicted upon detainees qua detainees. Courts must be mindful that these

inquiries spring from constitutional requirements and that judicial answers to them must

reflect that fact rather than a court’s idea of how best to operate a detention facility.” Bell,

441 U.S. at 538-39 (internal quotations and citations omitted). Thus, “[t]o establish that a

particular condition or restriction of his confinement is constitutionally impermissible

“punishment,” the pretrial detainee must show either that it was (1) imposed with an expressed

intent to punish or (2) not reasonably related to a legitimate nonpunitive governmental

objective, in which case an intent to punish may be inferred.” Martin v. Gentile, 849 F.2d 863,

870 (4th Cir. 1988).

Here, for most of his stay in the Detention Center, Plaintiff was in medical segregation

based on his multiple medical issues, which are fully supported by the record already discussed.

There is no evidence that he was placed in or kept in medical segregation as any sort of

punishment. While in medical segregation, Plaintiff had “the same access as the general

population to a daily shower, a shave three times per week, laundry of cloths and linens,

correspondence, media, visitation, phone, a clean cell and religious guidance, social services

and counseling.” (Diehl Aff. ¶ 12.) He also received one hour of exercise outside his cell each

day. (Id.) He suffered further restrictions only during the brief periods when he was in

Disciplinary Segregation or on Suicide Watch. (Id.) Finally, as noted earlier, Plaintiff only

made one official request to be transferred out of medical segregation and never requested it

again. There were three brief periods of time when Plaintiff was expressly punished for

disobeying orders, interfering with staff, and harming himself. However, his status as a pretrial

detainee does not protect him from all punishment. Instead, a pretrial detainee can be

subjected to punishment for disciplinary offenses after notice of the alleged misconduct, a

hearing, and a written explanation of the resulting decision. Dilworth v. Adams, 841 F.3d 246,

253-54 (4th Cir. 2016). Plaintiff does not allege that he did not receive these due process

protections for each of his disciplinary convictions. In fact, the record demonstrates that in

each instance, he did receive notice, plead not guilty, have a hearing, and then admit guilt at

the hearing, resulting in a written decision. For this reason, Plaintiff received all of the process

he was due, and the series of brief confinements in administrative segregation as punishment

for disciplinary infractions did not violate his federal constitutional rights. Defendant Rogers

is entitled to summary judgment on this claim as well.

C. Plaintiff’s Motion for Summary Judgment

Plaintiff has also filed a Motion for Summary Judgment. For all of the reasons set out

above, not only is Plaintiff not entitled to summary judgment, but it is the Defendants who

are so entitled and the case against them should be dismissed. Plaintiff’s Motion for Summary

Judgment should be denied accordingly. All of Plaintiff’s claims should be dismissed.

D. Motion to Seal

Finally, the Court notes that there is a pending Motion to Seal [Doc. #85] filed by

Defendant Rogers which pertains to certain exhibits containing Plaintiff’s medical records

from the Guilford County Jail. Defendant Rogers filed the Motion to Seal to protect Plaintiff’s

privacy interest in the medical records, in order to allow Plaintiff the opportunity to present a

request for sealing under Local Rule 5.4. However, Plaintiff has not filed any request for

sealing under Local Rule 5.4, nor has he shown any basis or need for sealing the records.

Indeed, Plaintiff has put his medical treatment at issue in this case, and Plaintiff has also filed

portions of the medical records with his briefs without any request to seal. As to all of the

records, the Parties have relied on those records in their briefing, and the Court has considered

and cited to the records at length in this Recommendation. Given the significant First

Amendment interests involved, and in light of Plaintiff’s failure to present any basis or request

for keeping the medical records under seal, the Court will recommend that the Motion to Seal

be denied, and that the Brief and Attachments [Doc. #87, #88] be unsealed. See Stone v.

Univ. of Md. Med. Sys. Corp., 855 F.2d 178 (4th Cir. 1988) (setting out the standard for sealing

documents protected by the common law right of access based on a weighing of “competing

interests,” as well as the higher standard for sealing documents protected by the First

Amendment based on a showing that the restriction is “narrowly tailored” and serves a

“compelling interest”); Rushford v. The New Yorker Magazine, Inc., 846 F.2d 249, 253-54

(4th Cir. 1988) (discussing the applicability of the First Amendment protection to documents

filed in connection with motions for summary judgment).

IT IS THEREFORE RECOMMENDED that the Motion to Seal [Doc. #85] be

denied, and that the Brief and Attachments [Doc. #87, #88] be unsealed.

IT IS FURTHER RECOMMENDED that Defendant Rogers’s Motion for Summary

Judgment [Doc. #79] and Defendants Ryan and Underhill’s Motion for Summary Judgment

[Doc. #91] be granted, that Plaintiff’s Motion for Summary Judgment [Doc. #110] be denied,

that all of the claims in this case be dismissed, and that this action be dismissed in its entirety.

IT IS FURTHER RECOMMENDED that Tom Sybesma’s Motion to Enforce [Doc.

#76] and Plaintiff’s Motion to Deny [Doc. #102] be denied as moot in light of that

Recommendation.

This, the 19th day of August, 2020.

/s/ Joi Elizabeth Peake

United States Magistrate Judge