DONALDSON v. BAKER

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

STEVEN MATTHEW DONALDSON, )

)

Plaintiff, )

)

v. ) 1:18cv563

)

OFFICER S. BAKER, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on “Defendant’s Motion for

Summary Judgment” (Docket Entry 26) (the “Motion”).1 For the

reasons that follow, the Court should grant the Motion.

BACKGROUND

Alleging violation of his constitutional rights during his

incarceration at Scotland Correctional Institution (“Scotland CI”),

Steven Matthew Donaldson (the “Plaintiff”) sued officer “S. Baker”

(at times, the “Defendant” or “Officer Baker”) and two “John Doe”

defendants in connection with an incident on October 17, 2017 (at

times, the “Incident Date”). (Docket Entry 2 (the “Complaint”) at

1-5.)2

1 For legibility reasons, this Opinion uses standardized

capitalization and spelling, and omits the word “the” before

“Plaintiff,” in all quotations from the parties’ materials.

2 Docket Entry page citations utilize the CM/ECF footer’s

pagination.

According to Plaintiff’s unverified Complaint:

On [October 17, 2017,] at approx[imately] 3-4 pm[,

Plaintiff] was involved in an altercation with [Scotland

CI] staff where [he] was maced and placed in restraints

behind [his] back. [Plaintiff] was being escorted by

Unit Manager John Doe and Officer John Doe down the blue

unit hallway-connector when both John Doe officers

allowed Officer S. Baker [to] come[] up behind

[Plaintiff] with cruel and evil intentions and strike[

him] over the head with her baton and use[] racial

comments[,] Quote you bitch ass white boy[,] which

violates [Plaintiff’s rights under the] 8th and 14th

Amendments. There w[ere] multiple officers around during

this incident but due to [Plaintiff] being maced[, he]

could not see. [However,] where this incident took place

has video cameras on both ends of the hallway.

(Id. at 5.) “As a result of this incident[, Plaintiff] had to be

taken to outside medical to have seven staples placed in the back

of [his] head.” (Id.) He “ha[s] constant headaches and numbness

to the back of [his] head,” for which he “ha[s] been placed on

Tylenol.” (Id.)

Contending that “Officer Baker” acted with “evil intentions”

and callously and indifferently to his rights, Plaintiff seeks

“actual damages in the amount of $50,000 for pain and suffering and

punitive damages in the amount of $75,000.” (Id.) The Court

dismissed Plaintiff’s claims against the John Doe defendants “for

failure to state a claim upon which relief can be granted at this

time” (Docket Entry 8 at 1), but allowed Plaintiff’s eighth-

amendment excessive force claim to proceed against Officer Baker

(see Docket Entry 4 at 3; see also Docket Entry 8 at 1 (adopting

Docket Entry 4)).

2

Following close of discovery (see Text Order dated Nov. 12,

2019 (granting Plaintiff’s request to extend discovery deadline to

February 24, 2020)), Defendant moved for summary judgment

(see Docket Entry 26). That same day, the Clerk notified Plaintiff

of his right to respond to the Motion, warning him, inter alia,

that his

failure to respond or, if appropriate, to file affidavits

or evidence in rebuttal within the allowed time may cause

the [C]lourt to conclude that the defendants’ contentions

are undisputed and/or that you no longer wish to pursue

the matter. Therefore, unless you file a response in

opposition to the motion, it is likely your case will be

dismissed or judgment granted in favor of the defendants.

(Docket Entry 30 at 1; see also id. (cautioning Plaintiff that any

“affidavits must be made on personal knowledge, contain facts

admissible in evidence and be made by one shown to be competent to

testify”).) Plaintiff thereafter sought (see Docket Entry 31 at 1)

and obtained (see Text Order dated Nov. 23, 2020) an extension of

his deadline to respond to the Motion. (See id. (establishing new

response deadline of January 29, 2021).) However, Plaintiff filed

no response to the Motion. (See Docket Entries dated Nov. 23,

2020, to present.)

Accordingly, the undisputed record reflects the following:°*

3 Because Plaintiff did not verify his Complaint (see

generally Docket Entry 2) or otherwise attest to its contents ‘as

true under penalty of perjury,” as permitted under 28 U.S.C.

S 1746, see Nissho-Iwai_ Am. Corp. v. Kline, 845 F.2d 1300, 1306

(Sth Cir. 1988) (explaining that Section 1746 “permits unsworn

declarations to substitute for an affiant’s oath if the statement

(continued...)

Defendant has served as a correctional officer at Scotland CI

since approximately April 2014. (Docket Entry 28-1, 4 2.) On the

Incident Date, Defendant “was assigned to the Blue Unit, D-E-F

Pods,” and “Plaintiff was then housed in F Pod.” (Id., FI 3.)

Defendant “was responsible for, among other things, conducting chow

call for F Pod, which involved making sure that the offenders in F

Pod walked to the dining hall.” (Id., 7 4.) “The inmates in this

unit, including Plaintiff, are not restrained in any way when

walking to and from the dining hall.” (Id., TI 7.)

“On October 17, 2017, when [she] was conducting chow call in

the corridor, [Defendant] saw Plaintiff walking from F Pod toward

the dining hall.” (Id., 7 6.) “A few moments later, in the

corridor, [Defendant] saw Plaintiff punch Correctional Officer

Felecia Pate in the face with a closed fist without provocation and

without warning.” (Id., FI 8.) “There is a video that shows, at

3:15:43 PM, Plaintiff throwing his first punch at Officer Pate, a

‘haymaker’ punch with his right arm.” (Id., 9 9.)* “He punched

3(...continued)

contained therein is made ‘under penalty of perjury’ and verified

as ‘true and correct’”), the Complaint’s unsworn allegations do not

constitute evidence for summary judgment purposes, see In re

French, 499 F.3d 345, 358 (4th Cir. 2007) (Whitney, J.,

concurring); Reeves v. Hubbard, No. 1:08cv721, 2011 WL 4499099, at

*5 n.14 (M.D.N.C. Sept. 27, 2011), recommendation adopted, slip op.

(M.D.N.C. Nov. 21, 2011).

4 Defendant filed the Motion and supporting exhibits

electronically (see Docket Entries 26 to 28-8), but, also through

an electronic filing, requested permission to manually file a flash

(continued...)

Officer Pate with a closed fist in the face and head numerous times

in the approximately three seconds it took [Defendant] to get to

him and Officer Pate.” (Id., FT 10.) “As [Defendant] ran to

Officer Pate, [Defendant ] could see that she was’ losing

consciousness or had already lost consciousness, and she was not

able to fight back or even protect herself.” (Id., 7 11.) “AS

[Defendant] ran to Officer Pate, [Defendant] believed that [Officer

Pate] was in imminent danger of serious bodily injury or even

death.” (Id., 7 12.)

“In the location where Plaintiff was assaulting Officer Pate,

there were numerous other inmates.” (Id., 97 13.) “The proximity

of the other inmates, as well as the proximity of Plaintiff to

Officer Pate, made the use of pepper spray unfeasible in that

moment.” (Id., @ 14.) “As [she] ran to Officer Pate, [Defendant]

called out a verbal command to Plaintiff to stop what he was doing.

Plaintiff ignored [her] command.” (Id., 97 15.) “When [she]

reached Plaintiff, [Defendant] continued to command him to stop,

and Plaintiff continued to ignore commands.” (Id., 7 16.) “Since

Officer Pate was in imminent danger, [Defendant] utilized [her]

4(...continued)

drive containing the referenced video (see Docket Entry 29 at 1-2).

The Court granted that request, directing Defendant to manually

file the flash drive containing the video by November 2, 2020.

(See Text Order dated Oct. 27, 2020.) However, the docket contains

no indication that Defendant complied with this order or otherwise

manually filed the video (see Docket Entries dated Oct. 26, 2020,

to present), and the undersigned has been unable to locate any such

video among the Court’s records.

baton in a counterstrike against Plaintiff, which is an approved

method of regaining control of a violent inmate, in an effort to

stop the attack on Officer Pate.” (Id., ¶ 17.) “When [Defendant]

struck Plaintiff with [her] baton, he was not restrained, and he

was continuing his violent attack on a helpless Officer Pate.”

(Id., ¶ 18.) “After [Defendant] struck Plaintiff, he turned and

punched [her] with a closed fist on the left side of [her] face,

and [she] was no longer able to assist in the efforts to regain

control of Plaintiff.” (Id., ¶ 19.) “After [she] was punched by

Plaintiff, [Defendant] did not use force of any kind on Plaintiff

again.” (Id., ¶ 20.)

“[Defendant] struck Plaintiff only one time before other

officers arrived at the scene and regained control of Plaintiff.”

(Id., ¶ 21.) “[Defendant] did not hit Plaintiff in the head with

[her] baton after he was restrained and back under control.” (Id.,

¶ 22.) “[Defendant] did not strike Plaintiff, or otherwise use

force on Plaintiff, after he was restrained and back under the

control of the other correctional officers.” (Id., ¶ 23.)

“[Defendant] did not strike Plaintiff when he was being escorted

away from the scene of the incident.” (Id., ¶ 24.) “[Defendant]

never called Plaintiff a ‘bitch ass white boy’ or any other

inappropriate names.” (Id., ¶ 25.) “[Defendant’s] only intention

in using force during the incident was to use the minimal amount of

force needed to obtain a correctional objective, namely, to stop

6

the attack on Officer Pate, regain control of Plaintiff, and

restore order.” (Id., ¶ 26.) “[Defendant’s] intentions in using

force during the incident were not to be cruel or evil.” (Id.,

¶ 27.) “[Defendant] was injured by Plaintiff in the incident

(i) when he punched [her] in the face with a closed fist and

(ii) when [she] thereafter slipped in the pepper spray onto [her]

left knee; as a result, [she] had to be seen by prison medical

staff, and then by an outside hospital.” (Id., ¶ 28.)

Jamie Hammonds (“Hammonds”), a Scotland CI correctional

lieutenant (Docket Entry 28-7, ¶ 2), served as “a correctional

housing unit manager at Scotland CI” in October 2017 (id., ¶ 3).

“On October 17, 2017, a Code 7 (staff member down) was called in

[his] unit, and [Hammonds] responded to the D-E-F corridor where

[he] found Plaintiff. Plaintiff had just assaulted a number of

staff members.” (Id., ¶ 5.) “When [he] arrived at Plaintiff’s

location, [Hammonds] handcuffed Plaintiff.” (Id., ¶ 6.)

“Immediately thereafter, [Hammonds] assisted in escorting Plaintiff

to the medical unit.” (Id., ¶ 7.) “[Hammonds] understand[s] that

Plaintiff claims in his lawsuit against [Defendant] that, while

[Hammonds] was escorting Plaintiff to the medical unit, Officer

Baker struck Plaintiff. This is untrue, and it did not happen.”

(Id., ¶ 8.) “[Hammonds] also understand[s] that Plaintiff claims

in his lawsuit against Officer Baker that, while [Hammonds] was

escorting Plaintiff to the medical unit, Officer Baker yelled at

7

Plaintiff and called Plaintiff inappropriate names. This, too, is

untrue, and it did not happen.” (Id., ¶ 9.)

Also on October 17, 2017, Karen Henderson (“Henderson”) served

as “a correctional captain and the facility intelligence officer at

Scotland CI.” (Docket Entry 28-4, ¶ 3.) “As a correctional

captain, [her] job duties involved assisting in planning,

supervising, and coordinating activities at Scotland CI. [She] was

also responsible for serving as shift supervisor.” (Id., ¶ 4.)

“[She] also assisted in planning and supervising personnel actions,

administrative affairs, officers’ work schedule[s,] and

coordinating activities involving discipline, security, and the

welfare of the inmate population.” (Id.) “As the facility

intelligence officer at Scotland CI, [her] duties included

investigating, monitoring, and reporting all possible gang-related

activity at the prison.” (Id., ¶ 5.)

“On the Incident Date, Plaintiff was serving a sentence for

Larceny After Breaking and Entering and Habitual Breaking and

Entering after having been previously convicted of Felony Breaking

and Entering and Larceny After Breaking and Entering.” (Id., ¶ 6.)

“During his latest incarceration, Plaintiff was charged with and

found guilty of fifteen (15) infractions, ranging from Assault on

Staff with a Weapon to Involvement with a Gang or Security Risk

8

Group.” (Id., @ 7.)° “On the Incident Date, Plaintiff was

classified as being in a Security Risk Group ([an] ‘SRG’), called

Folk Nation. In fact, Plaintiff was classified as being in the

highest level of the Folk Nation — Level ITI. The Level III

classification means he was one of the most dangerous inmates with

links to Folk Nation leadership.” (Id., QF 9.) “Since Plaintiff

was SRG classified, [Henderson] conducted an investigation of the

use-of-force incident that is the subject of this [lawsuit] to see

if it was gang related.” (Id., J 10.)

Henderson interviewed Plaintiff as part of this investigation.

(Id., {7 11.) “During [Henderson’s] interview with Plaintiff, he

confirmed that he was a Level III member of the SRG, Folk Nation”

(id., @ 12) and “admitted that he started the incident, without

provocation and by a surprise attack, by repeatedly punching

correctional officer Felecia Pate in the face with a closed fist”

(id., 7 13). “Plaintiff further admitted in [this] interview that

his assault on Officer Pate was a ‘hit’ ordered by high-ranking

members of the Folk Nation.” (Id., QF 14.) “Never during

[Henderson’ s] interview with Plaintiff did he allege that

[Defendant] hit him in the head with her baton after he was

restrained and back under control.” (Id., 7 15.) “Never during

5 These infractions began on the Incident Date and continued

through August 2020, and included, inter alia, four separate

infractions for assaulting staff with a weapon, as well as separate

active rioter and weapon possession infractions. (See Docket Entry

28-6 at 1.)

[Henderson’s] interview with Plaintiff did he allege that Officer

Baker called him a ‘bitch ass white boy’ or any other inappropriate

names.” (Id., ¶ 16.) “As a result of his conduct on the Incident

Date, Plaintiff was charged and found guilty of the infractions of

A-03 Assault On Staff With Weapon and A-14 Involvement With Gang.”

(Id., ¶ 17.)

DISCUSSION

I. Relevant Standards

A. Summary Judgment

“The [C]ourt shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A genuine dispute of material fact exists “if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). The movant bears the burden of establishing the

absence of such dispute. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986).

In analyzing a summary judgment motion, the Court “tak[es] the

evidence and all reasonable inferences drawn therefrom in the light

most favorable to the nonmoving party.” Henry v. Purnell, 652 F.3d

524, 531 (4th Cir. 2011) (en banc). In other words, the nonmoving

“party is entitled ‘to have the credibility of his evidence as

forecast assumed, his version of all that is in dispute accepted,

10

[and] all internal conflicts in it resolved favorably to him.’”

Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc)

(brackets in original) (quoting Charbonnages de France v. Smith,

597 F.2d 406, 414 (4th Cir. 1979)). If, applying this standard,

the Court “find[s] that a reasonable jury could return a verdict

for [the nonmoving party], then a genuine factual dispute exists

and summary judgment is improper.” Evans v. Technologies

Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996).

However, “[o]Jnly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude

the entry of summary judgment.” Anderson, 477 U.S. at 248.

Moreover, “the non-moving party may not rely on beliefs,

conjecture, speculation, or conclusory allegations to defeat a

motion for summary judgment.” Lewis v. Eagleton, No. 4:08cv2800,

2010 WL 755636, at *5 (D.S.C. Feb. 26, 2010) (citing Baber v.

Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992)),

aff’d, 404 F. App’x 740 (4th Cir. 2010); see also Pronin v.

Johnson, 628 F. App’x 160, 161 (4th Cir. 2015) (explaining that

“[m]ere conclusory allegations and bare denials” or the nonmoving

party’s “self-serving allegations unsupported by any corroborating

evidence” cannot defeat summary Judgment). Finally, factual

allegations in a complaint or court filing constitute evidence for

summary judgment purposes only if sworn or otherwise made under

penalty of perjury. See Reeves v. Hubbard, No. 1:08cv721, 2011 WL

11

4499099, at *5 n.14 (M.D.N.C. Sept. 27, 2011), recommendation

adopted, slip op. (M.D.N.C. Nov. 21, 2011).

B. 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

. . . 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

12

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.°

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

6 Nevertheless, 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).

13

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

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

U.S. at 321.

II. Analysis

Defendant moves for summary judgment, “contend[ing] that the

record establishes as a matter of law that she did not violate

Plaintiff’s Eighth Amendment rights or any of his other

constitutional or legal rights.” (Docket Entry 26 at 1.)7 In so

arguing, Defendant primarily focuses on the subjective component of

an excessive force claim, asserting that “the Whitley factors

demonstrate[] that the use of force was necessary and not

7 Defendant alternatively asserts her “entitle[ment] to

prevail as a matter of law based upon qualified immunity.” (Id.)

Because, as discussed below, Defendant prevails on her excessive

force contention, the Court need not address qualified immunity.

14

excessive” (Docket Entry 27 at 15). (See id. at 9-15.)

Defendant’s contention possesses merit.8

Turning to the first Whitley factor, “the record indicates

that there was a need for the application of force,” Adkins v.

McDonald, No. 5:14-ct-3169, 2016 WL 7655775, at *4 (E.D.N.C. Feb.

23, 2016), aff’d, 667 F. App’x 395 (4th Cir. 2016). Specifically,

the record reflects that, as unrestrained inmates walked to the

dining hall, Plaintiff initiated an unprovoked surprise attack on

Officer Pate, repeatedly punching her in the head and face, causing

her to begin losing consciousness. (See Docket Entry 28-1, ¶¶ 4,

6-11; Docket Entry 28-4, ¶ 13.) The record further establishes

8 As noted, Plaintiff filed no opposition to the Motion.

(See Docket Entries dated Oct. 26, 2020, to present.) Under this

Court’s Local Rules, “[i]f a respondent fails to file a response

within the time required . . ., the motion will be considered and

decided as an uncontested motion, and ordinarily will be granted

without further notice.” M.D.N.C. LR 7.3(k). However, as the

United States Court of Appeals for the Fourth Circuit has

explained:

in considering a motion for summary judgment, the

district court must review the motion, even if unopposed,

and determine from what it has before it whether the

moving party is entitled to summary judgment as a matter

of law. Although the failure of a party to respond to a

summary judgment motion may leave uncontroverted those

facts established by the motion, the district court must

still proceed with the facts it has before it and

determine whether the moving party is entitled to

judgment as a matter of law based on those uncontroverted

facts.

Robinson v. Wix Filtration Corp., 599 F.3d 403, 409 n.8 (4th Cir.

2010) (internal quotation marks and citation omitted) (emphasis in

original).

15

that Plaintiff disobeyed Defendant’s verbal commands to stop

attacking Officer Pate (see Docket Entry 28-1, QI 15-16) and that

the presence in the area “where Plaintiff was assaulting Officer

Pate . . . [of] numerous other inmates” (id., 13), in Defendant’s

view, made “use of pepper spray unfeasible in that moment” (id.,

gq 14).

In addition, the record shows that Defendant struck Plaintiff

one time with her baton “in an effort to stop the attack on Officer

Pate” (id., @ 17), at which point Plaintiff “turned and punched

[Defendant] with a closed fist on the left side of [her] face,”

preventing further efforts on her part to regain control of

Plaintiff (id., @ 19). Finally, the record reveals that, on the

Incident Date, “Plaintiff was classified as being in the highest

level of the Folk Nation” SRG, meaning that “he was one of the most

dangerous inmates with links to Folk Nation leadership.” (Docket

Entry 28-4, I 9.)°

“[I]t is reasonable under these circumstances that Defendant □□

perceived Plaintiff was a security risk and that force was needed

to restore order.” Adkins, 2016 WL 7655775, at *4; see also Boose

v. Adkins, No. 3:18-cv-1480, 2020 WL 3086885, at *13 (S.D. W. Va.

May 20, 2020) (explaining that “[c]ourts in this Circuit have

routinely held that law enforcement and correctional officers may

9 Indeed, after the incident, Plaintiff admitted “that his

assault on Officer Pate was a ‘hit’ ordered by high-ranking members

of the Folk Nation.” (Id., 7 14.)

16

deploy force in response to threatening, disruptive, or assaultive

behavior” and that “[t]he need for the application of force when an

inmate engages in disruptive behavior and initiates physical

confrontation with a correctional officer is clear”) (collecting

cases), report and recommendation adopted, No. CV 3:18-1480, 2020

WL 3078333 (S.D. W. Va. June 10, 2020). Accordingly, the first

Whitley factor weighs in Defendant’s favor.

Next, the Court considers “the relationship between the need

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

(internal quotation marks omitted). This factor also favors

Defendant. Here, after Plaintiff failed to obey her verbal

commands, Defendant employed a single baton strike in an attempt to

stop Plaintiff from continuing his unprovoked physical assault on

another correctional officer, who had begun losing consciousness

and thus remained unable to defend herself. (See Docket Entry 28-

1, ¶¶ 8-21.) The single strike had no demonstrable effect on

Plaintiff, who responded by “turn[ing] and punch[ing Defendant]

with a closed fist on the left side of [her] face.” (Id., ¶ 19.)

“Under these circumstances, facing . . . an imminent threat to

[Officer Pate’s] safety, [Defendant’s] response was proportional to

the threat presented.” Boose, 2020 WL 3086885, at *14.

Accordingly, the second Whitley factor weighs against Plaintiff.

The third factor, “the extent of any reasonably perceived

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

17

535 F.3d at 239, also favors Defendant. Here, Plaintiff — a known,

high-ranking gang member — initiated a surprise violent attack on

a correctional officer as unrestrained inmates walked to the dining

hall and then ignored repeated verbal commands to stop his assault.

(See Docket Entry 28-1, ¶¶ 4, 6-16; Docket Entry 28-4, ¶¶ 9-13.)

As such, Plaintiff posed a significant threat to, inter alia,

Officer Pate and the other inmates in the hallway; the third

Whitley factor thus supports Defendant’s position. See, e.g.,

Boose, 2020 WL 3086885, at *14 (finding for officer on this factor

where inmate “began arguing with [officer], refused her attempts to

make him stand back, and responded to her attempts by deploying

force himself” by shoving and possibly striking officer, and noting

that “[c]orrectional officers are certainly justified in deploying

force in response to the threat of physical harm”).

The final Whitley factor, “any efforts made to temper the

severity of a forceful response,” Iko, 535 F.3d at 239 (internal

quotation marks omitted), similarly weighs against Plaintiff.

Here, the record reflects that Defendant repeatedly commanded

Plaintiff to cease his assault on Officer Pate before Defendant

employed a single baton “counterstrike” against Plaintiff (Docket

Entry 28-1, ¶ 17), who continued his assault on Scotland CI

officers by then punching Defendant. (See id., ¶¶ 15-19.) As

such, the fourth factor also undermines Plaintiff’s excessive force

claim.

18

In sum, the record establishes that Defendant’s single baton

strike “w[as] a good faith effort to maintain and restore

discipline and not excessive force,” Bullard v. Peppers, No.

5:16-ct-3240, 2019 WL 826455, at *6 (E.D.N.C. Feb. 21, 2019)

(internal quotation marks omitted). See, e.g., Grayson v. Peed,

195 F.3d 692, 696-97 (4th Cir. 1999) (holding that five-man cell

extraction team who pinned inmate face down and then, “[d]uring the

course of the struggle,” punched him “seven to nine times” after

inmate stuck hand through food slot, refused commands to remove his

hand, and jammed his foot in cell doorway when officers opened cell

door, id. at 694, did not employ constitutionally excessive force);

Bullard, 2019 WL 826455, at *4-6 (finding that officer did not

engage in excessive force where he punched inmate multiple times

and hit him with a padlock after inmate removed handcuffs, clinched

his fist, and yelled as officers approached and then engaged in

struggle with officer); Adkins, 2016 WL 7655775, at *2, 4-5

(concluding that officers who struck inmate with baton after he

grabbed one officer’s arm, refused command to let go, and attempted

to pull officer toward inmate did not employ excessive force).

Accordingly, the Court should grant Defendant’s Motion.

19

CONCLUSION

The undisputed record forecloses Plaintiff’s excessive force

claim against Defendant.

IT IS RECOMMENDED that the Motion (Docket Entry 26) be

granted.

This 24th day of June, 2021.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

20