PATTERSON v. HENDERSON

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHRISTOPHER O’NEAL PATTERSON, )

)

Plaintiff, )

)

v. ) 1:19CV204

)

CAPTAIN HENDERSON, et. al., )

)

Defendants. )

ORDER, MEMORANDUM OPINION AND

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court upon a motion for summary judgment by Plaintiff

Christopher O’Neal Patterson. (Docket Entry 36.) Also before the Court is Plaintiff’s motion

to amend the Complaint. (Docket Entry 41.) Defendants have failed to respond to either

motion. These matters are ripe for disposition. For the following reasons, the Court will grant

Plaintiff’s motion to amend the Complaint correcting the identities of several defendants, and

recommend that Plaintiff’s motion for summary judgment be denied.

I. BACKGROUND

Plaintiff, a pro se prisoner, filed the instant Complaint alleging constitutional violations

by Defendants stemming from an incident that occurred while Plaintiff was housed at Scotland

Correctional Institution (“Scotland”) in Laurinburg, North Carolina. (See generally Complaint,

Docket Entry 2.) Plaintiff names several prison administration officials and multiple

correctional officers as Defendants in this action. (See id. at 4, 12-14.)1 The facts in the

1 All citations in this recommendation to documents filed with the Court refer to the page

Complaint are alleged as follows:

On Tuesday October 23, 2018, officials were conducting “shakedown” procedures in

the Delta Pod of the Green Unit at Scotland in an attempt to recover an aluminum pan

belonging to the prison’s kitchen. (Id. at 15.) Officers Brown and Breeden approached

Plaintiff’s cell, at which time he was immediately subject to a strip search, and thereafter he

stood to the left of Officer Breeden outside the cell in flex cuffs while Officer Brown

conducted the cell search. (Id.) Once Officer Brown completed an initial cell search, Officer

Breeden advised that Plaintiff had not been through the metal detector. (Id. at 16.)

When Plaintiff subsequently returned to his cell, Officer Breeden initiated a second cell

search. (Id.) Plaintiff alleges that at such time, a State K-9 Officer arrived at his cell and begin

sifting through his material. (Id.) Plaintiff was informed that he would have to send his books

and legal material home if he did not have an active case pending. (Id.) Plaintiff then explained

his plans to reopen a matter using some of the legal material, however the officer “bagged up”

Plaintiff’s legal documents and paperwork and exited the cell. (Id.)

Upon the confiscation of his legal materials, Plaintiff became “indescribably furious,”

slipped out of the flex cuffs, and punched Officer Brown in the face causing him to fall to the

ground. (Id.) Officer Breeden then reacted, punching Plaintiff in the face, and Plaintiff begin

punching back. (Id.) An emergency alert signaled over the prison intercom and Plaintiff was

knocked to the floor and subdued by multiple officers. (Id. at 17.) During this time while on

the floor, Plaintiff alleges that Captain Gause ordered officers to mace Plaintiff, whose hands

were being cuffed behind his back without resistance. (Id.) Plaintiff also alleges that Unit

numbers located at the bottom right-hand corner of the documents as they appear on CM/ECF.

Manager Barns punched him three times in the head before Plaintiff was brought back up to

his feet, after which Unit Manager Barns and Officer Paul Vigo2 attempted to slam Plaintiff’s

head into the shower wall partition. (Id.)

Plaintiff then claims that he announced his intention to no longer be considered a threat

“[f]or all prisoners and officers to hear,” and that he stopped resisting. (Id. at 18.) While being

escorted away “aggressively” from the scene and down the stairway, Plaintiff continued to

announce his non-resistance despite Unit Manager Barns’ profanities. (Id.) During this walk

past several officials, Plaintiff heard Assistant Superintendent William Bullard tell Captain

Karen Henderson3 and other officers, “I want his ass beat.” (Id. at 18-19.) Plaintiff ignored

the comment and continued to announce his non-resistance to officers. (Id. at 19.)

Plaintiff then proceeded to the prison’s receiving area where he heard other inmates

conversing about the earlier altercation which they also witnessed. (Id.) Plaintiff alleges that

Captain Henderson stated that the other inmates needed to be removed from the area, after

which Plaintiff, still cuffed, was then shoved and tackled inside the holding cell by Unit

Manager Barns, then “viciously attacked” by Unit Manager Barns, Officers Oxendine, Brown,

Vigo, Nickolas Bustillos, Hunt (A), Hunt (B), Bullard,4 Leonard, and the State K-9 Officer.5

(Id. at 19-20.) Plaintiff claims that he was punched and kicked “over two dozen times,” while

2 Defendant Vigo notes his correct name in his Answer. (See Docket Entry 8 (Paul Vigo).)

3 Defendant Henderson notes her correct name in her Answer. (See Docket Entry 8 (Karen

Henderson).)

4 Defendant Bullard involved in the attack is a correctional officer and does not appear to be

the same individual named as Defendant William Bullard, Assistant Superintendent at Scotland.

5 Defendant Bustillos notes his correct name in his Answer. (See Docket Entry 8 (Nickolas

Bustillos).)

officers made derogatory statements at him. (Id. at 20.) Plaintiff was also struck in the back

of the head by the State K-9 Officer who used his retractable baton, which caused Plaintiff’s

head to split in two spots. (Id. at 21.) Captain Henderson instructed the officers to stop

attacking Plaintiff and they subsequently complied “one by one.” (Id.) Plaintiff further alleges

that while he laid on the floor in cuffs and bleeding, the State K-9 Officer kicked Plaintiff’s

leg “in attempts to break it.” (Id.) Unit Manager Barns then sprayed Plaintiff in the face and

mouth with mace causing severe burning. (Id.)

Plaintiff then alleges that he was taken to the decontamination shower area where he

again was assaulted with punches by Officers Vigo, Bustillos, Barns, Oxendine, and Hunt (A)

until instructed to cease by Captain Henderson. (Id. at 22.) Even after Captain Henderson’s

command, Plaintiff was struck again by Officers Vigo and Bustillos. (Id. at 22-23.) Officer

Vigo then removed the flex cuffs from Plaintiff. (Id. at 23.) Plaintiff states that he removed

very little of the mace spray from his person in the decontamination shower fearing further

assault. (Id.) Plaintiff alleges that the assaults by Defendants were in retaliation of his initial

assault on prison staff. (Id.)

The Complaint further alleges that Plaintiff requested medical attention after the

assaults, which was initially denied by Officers Affie Faison6 and Windley. (Id. at 23-24.)

Eventually other prisoners were able to alert an officer who called a nurse to the cell and

Plaintiff was escorted to the main medical station. (Id. at 24-25.) Plaintiff was evaluated by

Nurses Everitt and McLeod, who documented Plaintiff’s injuries and called Scotland

6 Defendant Faison notes her correct name in her Answer. (See Docket Entry 19 (Affie

Faison).)

Memorial Hospital to request an ambulance. (Id. at 25.) Plaintiff details that due to the events

described, his injuries included: (1) two gashes on his head requiring seven staples; (2) a swollen

and cut left eye; (3) swelling in his head, left side of his face, lips, and ears; (4) burning in his

ear drum lasting over a week; (5) two black eyes; (6) soreness to back and neck; (7) inability to

walk on his right leg the following day after the incident; (8) abrasions to both buttocks and

right rib cage; (9) difficulty opening his mouth due to jaw swelling; (10) and significant

emotional distress. (Id. at 25-26.)

Plaintiff alleges that he utilized the prison grievance system by filing a grievance on

December 3, 2018. (Id. at 26, 34-36.) On December 19, 2018, following an investigation,

prison officials concluded that no excessive force was used, to which Plaintiff appealed. (Id.

at 26, 37.) On January 17, 2019, prison officials responded, stating no excessive force was

found. (Id. at 26, 38.) Plaintiff again appealed, and on February 13, 2019, received a response

from the grievance resolution board dismissing the grievance. (Id. at 27, 39.)

Plaintiff claims that Defendants Bullard, Vigo, Bustillos, Hunt (A), Hunt (B),

Oxendine, Brown, and Leonard knowingly and willfully applied unnecessary use of force by

repeatedly punching and kicking him in the head, face, and body while Plaintiff’s wrists were

bound and secured with flex cuffs. (Id. at 27.) Additionally, Plaintiff claims that Defendant

Barns used excessive force by kicking, punching, and deploring mace spray while Plaintiff was

restrained. (Id.) Plaintiff alleges that the State K-9 Officer (identified as Defendant John Doe)

used excessive force by repeatedly kicking and punching Plaintiff as well as striking him with

his retractable baton while Plaintiff was restrained. (Id. at 28.)

Plaintiff also claims that Defendants Windley and Faison acted with deliberate

indifference by denying Plaintiff medical attention. (Id. at 28-29.) In regard to Captain

Henderson, Plaintiff claims that his rights were violated by Defendant’s failure to correct

misconduct that was observed during the assaults as well as denying Plaintiff medical attention.

(Id. at 29.) Finally, Plaintiff alleges that Defendant William Bullard, an administration official,

sanctioned the unlawful actions of the co-Defendants, and in doing so violated Plaintiff’s

constitutional rights. (Id. at 29-30.) Plaintiff alleges that these actions are in violation of his

due process rights under the Fourteenth Amendment as well as his rights under the Eighth

Amendment. (Id.)

Plaintiff filed this action on February 21, 2019, seeking a declaration that the acts

described in this Complaint violated his constitutional rights, as well as compensatory and

punitive damages “in excess of $10,000.00 . . . against each defendant, jointly and severally.”

(Id. at 30.) Plaintiff additionally asks that “additional cameras be installed in holding cells in

receiving to deter future assaults,” and “Defendants to be criminally charged and prosecuted.”7

(Id.)

After summonses were issued in this matter, several Defendants filed answers. (See

Docket Entries 8, 19.)8 Discovery commenced, and shortly before filing his summary

judgment motion, Plaintiff filed a notice with the Court indicating that Defendants failed to

7 Plaintiff should note that as a private citizen, he has no constitutional right, nor any judicially

cognizable interest, to institute criminal proceedings against another person. Lopez v. Robinson, 914

F.2d 486, 494 (4th Cir. 1990) (citing Linda R. v. Richard V., 410 U.S. 614, 619 (1973)). Indeed, “the

decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally

rests entirely in [the prosecutor’s] discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

8 However, multiple Defendants remain unserved at this time. (See Docket Entries 18, 20, 23,

24.) Plaintiff was forewarned that unserved Defendants may be dismissed from this action. (See

Docket Entry 26.)

comply with the Court’s order compelling production of certain discovery requests. (See

Docket Entry 35; see also Text Order dated 8/19/2020.) Plaintiff submitted the pending

motion for summary judgment on October 26, 2020. (Docket Entry 36.) In support of his

motion, Plaintiff submitted a declaration on his own behalf along with a photo of himself he

retrieved from the North Carolina Department of Public Safety’s website depicting some of

his alleged injuries, and requests for admissions which Plaintiff contends should be deemed

admitted for Defendants’ failure to respond. (See Docket Entries 37, 37-1, 37-2.)

On March 17, 2021, the Court construed Plaintiff’s notice of Defendants’ non-

compliance as a motion for sanctions pursuant to Civil Procedure Rule 37(b) and ordered

Defendants to file a response. (See Text Order dated 3/17/2021.) Counsel for Defendants

thereafter responded and represented to the Court that Defendants had complied with the

Court’s previous order and would provide Plaintiff with another copy of the discovery

responses. (Docket Entry 40.) In light of counsel’s representations to the Court, Plaintiff’s

motion for sanctions was denied; however, Plaintiff was given an opportunity to supplement

his summary judgment brief in light of the additional material he could now review. (See Text

Order dated 3/24/2021.) Plaintiff failed to file a timely supplemental brief but submitted a

motion to amend the Complaint to correct some of Defendants’ names. (See Docket Entry

41.) Defendants have not filed a response to the motion to amend nor the motion for

summary judgment.9

9 Per the local rules, an unopposed summary judgment motion should “be considered and

decided as an uncontested motion, and ordinarily will be granted without further notice.” L.R. Civ.

P. 7.3(k). However, “the Fourth Circuit still requires that unopposed motions to dismiss and

unopposed motions for summary judgment be reviewed to determine if dismissal is proper.” Jones v.

SSC Durham Operating Co., LLC, No. 1:17CV686, 2019 WL 290036, at *2 (M.D.N.C. Jan. 22, 2019)

II. DISCUSSION

Plaintiff’s Motion for Summary Judgment

Plaintiff moves for summary judgment as to all claims against Defendants Henderson,

William Bullard, Vigo, Bustillos and Faison. (Docket Entry 36.) Summary judgment is

appropriate when there exists no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c); Zahodnick v. Int’l Bus. Machs. Corp., 135

F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears the initial burden

of coming forward and demonstrating the absence of a genuine issue of material fact. Temkin

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

317, 322 (1986)). Once the moving party has met its burden, the non-moving party must then

affirmatively demonstrate that there is a genuine issue of material fact which requires trial.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for

trial unless there is sufficient evidence favoring the non-moving party for a fact finder to return

a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp.

v. Calvert County, Md., 48 F.3d 810, 817 (4th Cir. 1995). Thus, the moving party can bear his

burden either by presenting affirmative evidence or by demonstrating that the non-moving

party’s evidence is insufficient to establish his claim. Celotex, 477 U.S. at 331 (Brennan, J.,

dissenting). When making the summary judgment determination, the Court must view the

evidence, and all justifiable inferences from the evidence, in the light most favorable to the

non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196

(4th Cir. 1997). However, the party opposing summary judgment may not rest on mere

(unpublished) (citing See Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 416 n.3 (4th Cir. 2014)).

allegations or denials, and the court need not consider “unsupported assertions” or “self-

serving opinions without objective corroboration.” Evans v. Techs. Applications & Serv. Co., 80

F.3d 954, 962 (4th Cir. 1996); Anderson, 477 U.S. at 248-49. Here, Plaintiff is a pro se litigant;

thus, his pleadings are to be liberally construed. Graham v. Geneva Enters., Inc., 55 F. App’x 135,

136 (4th Cir. 2003).

A. Excessive Force

Plaintiff alleges that Defendants Vigo and Butsillo violated his constitutional rights

through the use of excessive force. (See Compl. at 27.) Claims of excessive force in attempts

to subdue a convicted prisoner are governed by the Eighth Amendment’s prohibition of cruel

and unusual punishment.10 Graham v. Connor, 490 U.S. 386, 394 (1989). “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 quotations omitted). Prison

officials have an “affirmative obligation to take reasonable measures to guarantee [inmate’s]

safety.” Id. (internal quotations omitted). Accordingly, when evaluating

an 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)). To make this

determination, the Court considers two elements: “whether the prison official acted with a

sufficiently culpable state of mind (subjective component) and whether the deprivation

10 While the Complaint asserts claims under both the Eighth and Fourteenth Amendments,

Plaintiff’s constitutional rights stemming from the incident and alleged conduct of the answering

Defendants sound solely in Eighth Amendment protections. Indeed, Plaintiff was a convicted

prisoner at the time of the alleged incident. (See Compl. at 4.)

suffered or injury inflicted on the inmate was sufficiently serious (objective component).” Iko

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

The objective component

focuses not on the severity of any injuries inflicted, but rather on

“the nature of the force,” which must be “nontrivial.” Wilkins v.

Gaddy, 559 U.S. 34, 39 (2010) (citing Hudson [503 U.S. at

7]); cf. Wilkins, 559 U.S. at 37 (explaining that the extent of injury

suffered may indirectly “provide some indication of the amount

of force applied”). Not every “malevolent touch by a prison

guard” is necessarily a constitutional violation. Hudson, 503 U.S.

at 9. The Eighth Amendment “excludes from constitutional

recognition de minimis uses of physical force, provided that the

use of force is not of a sort repugnant to the conscience of

mankind.” Id. at 10 [internal quotation and citation omitted].

Garris v. Gober, No. 1:10-CV-504, 2013 WL 4502261, at *1 (M.D.N.C. Aug. 22, 2013), aff’d,

554 F. App’x 211 (4th Cir. 2014). In other words, “there is no ‘significant injury’ threshold to

sustain an excessive force claim because a de minimis injury, if the product of malicious and

sadistic use of force, can sustain the claim.” Parker v. Stevenson, 625 F. App’x 196, 198 (4th Cir.

2015) (quoting Wilkins, 559 U.S. at 37-38).

As for the subjective component, “[t]he state of mind required in excessive force claims

is “wantonness in the infliction of pain.’ ” Iko, 535 at 239 (quoting Whitley v. Albers, 475 U.S.

312, 322 (1986)). The Supreme Court has set forth a list of non-exclusive factors to assist

courts in determining whether an officer has 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. (citing Whitley, 475 U.S. at 321) (internal quotations omitted). “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 tantamount to a knowing willingness that it occur.” Whitley, 475 U.S.

at 321.

Here, Plaintiff has not met his initial burden of coming forward and demonstrating the

absence of a genuine issue of material fact regarding the use of excessive force by Defendants

Vigo and Bustillos during the holding cell or shower assaults. At the outset, the Court notes

that Plaintiff had an opportunity to supplement his summary judgment brief after review of

the discovery material but failed to do so. Additionally, while Plaintiff seeks to have the

requests for admissions deemed admitted, doing so would not satisfy Plaintiff’s burden in this

matter. Generally, “[a]dmissions obtained under Rule 36, including matters deemed to be

admitted by a party’s failure to respond to a request for admissions, can form the basis for

granting [s]ummary [j]udgment.” Gardner v. Borden, Inc., 110 F.R.D. 696, 697 (S.D.W.Va. 1986)

(internal quotations and citation omitted). However here, Plaintiff’s requests for admission

shed no further light on the issue of excessive force surrounding the holding cell or shower

assaults. For example, even if it is deemed true that Plaintiff was cuffed while entering both

the holding cell and showering area, and that there were multiple officers present at such time

(see Docket Entry 37-2 at 2-3, 5), such facts do little to demonstrate an absence of a genuine

issue as to whether Defendants acted with a sufficiently culpable state of mind and whether

the deprivation suffered or injury inflicted upon Plaintiff was sufficiently serious. Iko, 535

F.3d at 238.

Beyond that, Plaintiff has submitted a photo of himself depicting some of his alleged

injuries and an uncorroborated self-declaration, which is mostly a recitation of the allegations

in the Complaint and otherwise lacks evidentiary support. (Docket Entries 37, 37-1.) This is

particularly noteworthy in light of Plaintiff’s references in the declaration to apparent “incident

reports” surrounding the allegations (see Docket Entry 37 at 2), which he did not file with his

motion, nor did he file any additional evidentiary support despite having an opportunity to do

so. Ultimately, Plaintiff’s submissions in support of his motion for summary judgment are

insufficient to meet his burden at this juncture. His motion for summary judgment on the

issue of excessive force should therefore be denied.

B. Deliberate Indifference

Plaintiff also moves for summary judgment on his claim for deliberate indifference

against Defendant Faison. It is well settled that not “every claim by a prisoner that he has not

received adequate medical treatment states a [constitutional] violation.” Estelle v. Gamble, 429

U.S. 97, 105 (1976). The Eighth Amendment only proscribes acts or omissions by prison

officials that are “sufficiently harmful to evidence deliberate indifference to serious medical

needs.” Id. at 106.

In the prison context, “a serious medical need exists if (1) a condition has been

diagnosed by a physician as mandating treatment or is so obvious that a layperson would

recognize the need for medical care; or if (2) a delay in treatment causes a lifelong handicap or

permanent loss.” Simmons v. Surry Cty. Sherriff’s Dep’t, No. 1:09CV94, 2010 WL 1418319, at *3

(M.D.N.C. Apr. 2, 2010) (unpublished) (citing Monmouth County Corr. Inst. Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987) and Loe v. Armistead, 582 F.2d 1291, 1296 (4th Cir. 1978)); see

also Iko, 535 F.3d at 241. In order to prove deliberate indifference, a plaintiff must show that

“the official knows of and disregards an excessive risk to inmate health or safety.” Farmer v.

Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference is a subjective standard, focusing

on the defendant’s conscious disregard of a substantial risk of harm. Farmer, 511 U.S. at 837-

38; see also Parish v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004). Additionally, the individual

defendant must realize his actions were inappropriate as a result of his actual knowledge of

risk to the inmate. Parish, 372 F.3d at 303. This standard is more than mere negligence,

requiring actual knowledge of the individual defendant’s own recklessness. Farmer, 511 U.S.

at 836.

Here, Plaintiff again fails to meet his burden of demonstrating an absence of a genuine

issue of material fact as to Defendant Faison’s alleged deliberate indifference conduct.

Plaintiff has not submitted any medical evidence regarding his injuries, nor any evidence

suggesting that Defendant Faison consciously disregarded a substantial risk of harm created

by those injuries. His motion should thus be denied for the same reasons articulated above

regarding his excessive force claims.

C. Supervisory Defendants

Plaintiff’s also asserts claims against Defendants Henderson and William Bullard in

their supervisory capacities. (See Compl. at 29 (Defendant Henderson failing to correct and/or

encouraging misconduct of subordinates; Defendant William Bullard sanctioning conduct of

other Defendants).) Defendants in supervisory roles may not be held liable based upon a

theory of respondeat superior, because respondeat superior generally is inapplicable to § 1983

suits. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978). However, a supervisor may be

liable for the actions of a subordinate if:

(1) the supervisor had actual or constructive knowledge that his

subordinate was engaged in conduct that posed “a pervasive and

unreasonable risk” of constitutional injury to citizens like the

plaintiff;

(2) the supervisor’s response to that knowledge was so

inadequate as to show “deliberate indifference to or tacit

authorization of the alleged offensive practices;” and

(3) there was an “affirmative causal link” between the

supervisor’s inaction and the particular constitutional injury

suffered by the plaintiff.

Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Additionally, “[a]plaintiff may establish

deliberate indifference by demonstrating a supervisor’s continued inaction in the face of

documented widespread abuses[,]” however, a “plaintiff assumes a heavy burden of proof” on

this issue because “a supervisor cannot be expected to promulgate rules and procedures

covering every conceivable occurrence within the area of his responsibilities.” See id. (internal

citation and quotations omitted).

Here, Plaintiff also fails to meet his burden on this issue. He has presented no evidence

demonstrating Defendants Henderson and William Bullard’s knowledge and response to their

subordinate’s conduct. More importantly, Plaintiff has not demonstrated the absence of a

genuine issue of material fact regarding Defendants’ “inaction in the face of documented

widespread abuses.” See id. As such, summary judgment should also be denied on this issue.

Plaintiff’s Motion to Amend/Correct Names

Plaintiff also seeks to amend his Complaint apparently to correct the names of several

defendants and to reveal the identity of the John Doe Defendant. (See Docket Entry 41.)11

Pursuant to Federal Rule of Civil Procedure Rule 15(a), leave to amend a pleading “shall be

freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). “In recognition of this liberal

standard, courts freely permit amendments to cure such pleading deficiencies as the improper

naming of defendants.” Silver v. Bayer HealthCare Pharms., Inc., No. CV 2:19-3495-DCN-MHC,

2020 WL 9397556, at *3 (D.S.C. Sept. 29, 2020) (unpublished); see also Campos v. Moultrie, No.

CV JKB-15-2800, 2016 WL 4240089, at *15 (D. Md. Aug. 11, 2016) (unpublished) (granting

motion to amend to correct names of defendants); Rocha v. Gilbert, No. 7:12-CV-2-D, 2012

WL 13189900, at *1 (E.D.N.C. June 20, 2012) (unpublished) (same).

The undersigned first notes that the motion only notes the first names of individuals

listed as Defendants but does not identify the state K-9 “John Doe” Defendant. (See id.

(identifying first names of Defendants Unit Manager Barns, Officer Oxendine, C/O Hunt (A),

and C/O Hunt (B)).) To the extent the motion to amend seeks to identify those specific

Defendants by their full names, the motion will be granted, and the Clerk will be ordered to

reflect that Defendant Unit Manager Barns is “Daniel Barnes,” Defendant Oxendine is

“Christopher Oxendine,” Defendant Hunt (A) is Daniel Hunt, and Defendant Hunt (B) is

“Mitchell Hunt.”

11 Attached to the motion is also a “Notice” which Plaintiff reiterates that he filed his summary

judgment motion despite Defendants’ failure to comply with discovery. (See Docket Entry 41 at 3.)

Plaintiff further states that Defendants made “unsubstantiated allegations” that discovery documents

were produced and now seek to produce them one year after the close of discovery. (Id.) Plaintiff

essentially takes issue with Defendants’ response to Plaintiff’s earlier motion which counsel

represented to the Court that discovery material had been provided in September 2020 and would

again be mailed to Plaintiff. (See Docket Entry 40.) This issue is now moot by entry of the Court’s

March 24, 2021 Text Order which included allowing Plaintiff an opportunity to supplement his

summary judgment brief after having reviewed the discovery material. (See Text Order dated

3/24/2021.)

III. CONCLUSION

For the reasons stated herein,

IT IS HEREBY ORDERED that Plaintiffs Motion to Amend Complaint (Docket

Entry 41) is GRANTED insofar as the Clerk shall reflect the Court’s docket such that

Defendants Unit Manager Barns, Officer Oxendine, C/O Hunt (A), and C/O Hunt (B) are

identified as Daniel Barnes, Christopher Oxendine, Daniel Hunt and Mitchell Hunt as noted

above.!2

IT IS RECOMMENDED that Plaintiff's Motion for Summary Judgment (Docket

Entry 36) be DENIED.

lito

United States Magistrate Judge

July 20, 2021

Durham, North Carolina

□ This does not alter the service status of said Defendants.

16