ANDERSON v. KEEGAN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DARRELL TRISTAN ANDERSON, )

)

Plaintiff, )

)

v. ) 1:19cv1195

)

SGT. N. KEEGAN, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on “Defendants’ Motion for

Summary Judgment” (Docket Entry 42) (the “Motion”) filed by

Nicholas Keegan (at times, “Sgt. Keegan”) and Katelyn McConnell (at

times, “Officer McConnell”). For the reasons that follow, the

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

BACKGROUND

Alleging violations of his constitutional rights arising from

an incident on February 8, 2018, during his incarceration at

Albemarle Correctional Institution (“Albemarle”), Plaintiff filed

suit against Sgt. Keegan, Officer McConnell (collectively, the

“Defendants”), and various other North Carolina Department of

Public Safety (the “NCDPS”) employees. (See Docket Entry 2 (the

“Complaint”) at 1-41.)1 Reviewing the Complaint pursuant to 28

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

pagination.

U.S.C. § 1915A (see generally Docket Entry 3), the Court permitted

Plaintiff to pursue his “excessive force claims under 42 U.S.C.

§ 1983 against Defendants” (Docket Entry 7 at 1) but dismissed all

other claims in the Complaint. (See id. (adopting Docket Entry

3).)

The parties thereafter engaged in discovery (see, e.g., Docket

Entry 48-3 (Defendants’ responses to Plaintiff’s requests for

production and admissions)), after which Plaintiff filed the

“Declaration of Plaintiff Darrell T. Anderson-Bey” (Docket Entry 41

(the “Declaration”) at 1). In addition to submitting the

Declaration under “penalty of perjury” (id. at 8), Plaintiff “also

declare[d] and verifie[d]” under “the penalty of perjury” the

allegations in the Complaint (id. at 7). A week later, Defendants

filed the Motion. (See Docket Entry 42.) Defendants’ Motion and

their supporting materials do not address the Declaration (and only

note that Plaintiff “alleges” certain facts in his Complaint (e.g.,

Docket Entry 44, FTI 1-5)). (See Docket Entries 42-46.) Plaintiff

responded to the Motion by filing multiple exhibits, affidavits,

and memoranda, many of which he verified under penalty of perjury

(see, e.g., Docket Entry 48 at 14). (See Docket Entries 48 to 48-

14, 51-52, 55-57.) Defendants did not file a reply in support of

the Motion. (See Docket Entries dated Sept. 15, 2021, to present.)

As relevant here, Plaintiff’s summary judgment evidence

reflects:

On February 4, 2018, Officer Dennis ordered Plaintiff to move

a chair from the top tier sleeping bunk area, but Plaintiff refused

to comply on the grounds that Officer Dennis’s order “‘[wa]s not

within reason, because [Plaintiff] did not place the chair up

there.’” (Docket Entry 2 at 19.) Although Officer Dennis asserted

that his “order was within reason,” Plaintiff disagreed and offered

as “an example [of an unreasonable order], ‘If you were to awake[n]

me only to ask me to move a chair, I would not do it because it

would be disrespectful, and not within reason, because you could

have gotten anyone to move the chair.’” (Id. at 20.)

Around 8:50 a.m. on February 8, 2018, “Plaintiff was

awaken[ed] from his sleep, by an order given over the intercom of

[D dorm in the Badin Unit]” ordering Plaintiff “to report to the

Officer’s Station.” (Id. at 18.) When Plaintiff arrived at the

Officer’s Station moments later, he found Defendants waiting for

him. (Id.) Upon Plaintiff’s arrival, Sgt. Keegan “asked, ‘Is this

him?’” (Id.) Upon “confirm[ing] his target, [Sgt. Keegan] glared

at Plaintiff[] and hostilely ordered, ‘Go back in there and move

that chair, that’s by your bunk, to the bottom sleeping quarters!’”

(Id.) “Plaintiff asked if he had been awaken[ed] out of his sleep

only to be ordered to move a chair.” (Id.) “After it was

confirmed that such was the fact, Plaintiff replied, ‘I did not

place the chair in its current location, so it[’]s not my

responsibility to move the chair.’” (Id. at 19.) “Plaintiff also

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pointed out that dorm janitors are paid wages for duties which

consist of cleaning the sleeping quarter(s).” (Id.) Sgt. “Keegan

then hostilely replied, ‘I don’t care who placed the chair up

there, I’m giving you a direct order to move it!’” (Id.) At that

point, Plaintiff recalled his prior interaction with Officer Dennis

(see id.), whom he noticed “in the Control Booth” (id. at 20).

Plaintiff argued with Sgt. “Keegan for a few more seconds”

before “flee[ing Sgt.] Keegan’s presence.” (Id. at 21.) When he

“arrived at the chair, furious that [Sgt.] Keegan had by-passed

dorm janitors and others, who[] were active in the dayroom area of

the dorm, to antagonize and target Plaintiff, by awak[en]ling

Plaintiff from sleep, to order Plaintiff to move the chair,”

Plaintiff dropped the chair from the top to the bottom sleeping

tier. (Id.) However, Plaintiff first surveyed the bottom floor

“to be sure no one was in harm’s way” before he dropped the chair,

and he “did not throw the chair from the top sleeping quarters as

later falsely reported.” (Id. (internal quotation marks omitted) □□

“Plaintiff then walked back down stairs,” where Sgt. Keegan met him

“near the middle of the dayroom/dorm.” (Id. at 22.) Sgt. “Keegan

held a pair of handcuffs in his hand,” but “did not tell Plaintiff

to submit to restraints.” (Id.) “[I]nstead he told Plaintiff, ‘I

hope you refuse to cuff up so I can make you!’” (Id.) “Plaintiff

asked, ‘is that an order or a challenge?’” (Id.) Plaintiff then

attempted to walk past Sgt. Keegan, but Sgt. “Keegan grabbed

Plaintiff’s arm, and pushed it.” (Id.)

“Plaintiff had no time to respond, [as Sgt.] Keegan

immediately followed his own action, by placing the palm of his

hand(s) around [] Plaintiff’s throat, and aggressively and

maliciously slammed Plaintiff into a nearby wall.” (Id.) “It then

felt as if [Sgt.] Keegan was attempting to bang Plaintiff’s head

into the wall.” (Id.; see also Docket Entry 55 at 7 (“[Sgt.]

Keegan placed his hand(s)/palm(s) on, against, or around

Plaintiff’s throat/wind pipe area for purposes of applying

pressure/force[] to ram/rush Plaintiff into the nearby wall”).)

After Sgt. Keegan “applied pressure/force to Plaintiff’s

throat/windpipe area, [he] then grabbed the back of Plaintiff’s

neck[] and beg[a]n to back-peddle, while pulling downward on the

back of Plaintiff’s neck, which would have achieved a goal of

smashing Plaintiff’s face into the hard concrete floor[.]” (Docket

Entry 41 at 2.) “However, Plaintiff struggled, and did succeed to

maintain balance (i.e. to remain on his feet), in [an] effort of

preventing facial injury.” (Id.) Sgt. “Keegan had clearly pulled

Plaintiff (by Plaintiff’s neck) from one side of the dorm half way

to the other side of the dorm.” (Id.) “Still Plaintiff had shown

no signs of an assault or attempted assault on [Sgt.] Keegan.”

(Docket Entry 2 at 23.) Plaintiff mentally “searched for answers

to minimize the excessive attack/assault.” (Id.) “Plaintiff had

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been turn[ed] sideways during the incident, but” then turned to

face Sgt. Keegan. (Id.) “Plaintiff was rewarded with a malicious

punch to the mouth[] by [Sgt.] Keegan.” (Id.; see also Docket

Entry 48-1 at 3 (“[Sgt.] Keegan punished Plaintiff with a closed

right handed fist to Plaintiff’s mouth, leaving swelling and

bruising.”).)

“At this point, Plaintiff was certain that he had only himself

for his own protection, and [he] did put forth an effort to get

[Sgt.] Keegan to cease the excessive, malicious, wanton

attack/assault,” by throwing one punch towards Sgt. “Keegan’s jaw

area.” (Docket Entry 2 at 23-24.) “Plaintiff’s ‘counter-action’

did cause [Sgt.] Keegan to abandon his attack/assault.” (Id. at

24.) Officer McConnell “had watched the entire incident from the

entrance of the dorm.” (Id.) However, she failed to either call

a Code Seven (per “procedure when staff is under attack”)2 or to

“intervene[] to preserve/provide security to Plaintiff, while

Plaintiff was under attack, but she did intervene[] when Plaintiff

threw a punch to defend himself.” (Id.) Specifically, Officer

“McConnell stepped in and” struck “Plaintiff’s leg[] with a baton[]

2 Officer McConnell admitted that she never called for backup

regarding the incident and never called a Code Seven. (See Docket

Entry 48-3 at 9-10.) Sgt. Keegan also admitted that he “never

called for backup (never called a Code 7)” during the incident.

(Id. at 16.)

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while yelling, ‘stop!’” (Id.)3 Officer McConnell “did not hit

Plaintiff hard at all [and] Plaintiff was not immobilized from the

strike.” (Docket Entry 55 at 13.) Instead, Plaintiff “spun around

to glare at [Officer] McConnell, and upon” recognizing her as a

female officer, “Plaintiff did turn back around and place[] his

face up against the nearby wall to show that” Plaintiff did not

intend any harm and remained willing “to be restrained, even though

Plaintiff had never ‘actually’ been ordered to submit to hand

cuffs.” (Docket Entry 41 at 3.)

In turn, Sgt. Keegan avers:

Sgt. Keegan has worked for the NCDPS since 2010, serving as a

Correctional Sergeant III at Albemarle on the date in question.

(Docket Entry 45-5, ¶¶ 2-3.) At approximately 8:50 a.m. on

February 8, 2018, Sgt. Keegan “gave a verbal directive to

[Plaintiff] to move a chair away from his bunk.” (Id., ¶ 5.)

“[Plaintiff] grabbed the chair and threw it downstairs.” (Id.,

¶ 6.) “Having witnessed this, [Sgt. Keegan] entered D-dorm in

Badin to place [Plaintiff] in restraints.” (Id., ¶ 7.)

“[Plaintiff] stated, ‘Don’t fucking touch me!’” (Id., ¶ 8.)

3 Under NCDPS policies, officers should use batons only when

“lower levels of force[,] such as communication, pepper spray,

[and] hands on physical force[,] are not feasible or failed . . .

or in extreme circumstances.” (Docket Entry 56 at 6 (internal

quotation mark omitted) (ellipsis in original).) Per policy,

Officer “McConnell should have used a lower level of force, instead

of the [e]xpandable baton.” (Id. at 7.) As such, her “use of [the

e]xpandable baton was unnecessary and [e]xcessive.” (Id.)

7

“[Sgt. Keegan] then gave verbal commands to [Plaintiff] to place

his hands behind his back and again [Plaintiff] stated, ‘You better

not fucking touch me!’” (Id., 7 9.)

“[Sgt. Keegan] took control of the arm of [Plaintiff]

attempting to place hand restraints on [Plaintiff].” (Id., { 10.)

“[Plaintiff] resisted.” (Id., FF 11.) “[Sgt. Keegan] placed

[Plaintiff] against the wall to gain control, but [Plaintiff]

turned around.” (Id., 7 12.) “Unsure of [Plaintiff’s] intentions,

[Sgt. Keegan] attempted to place [Plaintiff] on the floor.” (Id.,

{ 13.) “At this time, [Plaintiff] struck [Sgt. Keegan] in the

mouth with his right hand.” (Id., 97 14.) “[Sgt. Keegan] again

took control of [Plaintiff] to place him on the floor.” (Id.,

{ 15.) “At which point, Officer Katelyn McConnell deployed her

baton using a forward strike to the left common peroneal of

[Plaintiff].” (Id., 97 16.) “Officer McConnell was able to stop

the resistance resulting in hand restraints being applied by

Sergeant Keegan.” (Id., { 17.)

“During the above-described event, [Sgt. Keegan] perceived

[Plaintiff’s] refusal to follow directives and aggressive

resistance, as creating a threat to staff safety and the security

of the facility.” (Id., 7 18.) “[Sgt. Keegan] only used force to

prevent assault on [him]self, and other correctional staff, and to

control [Plaintiff].” (Id., 719.) “[Sgt. Keegan] used only the

amount of force necessary to achieve the correctional objectives of

preventing assault, controlling and subduing [Plaintiff], and

ensuring his compliance with lawful orders.” (Id., ¶ 20.) “[Sgt.

Keegan] did not continue to use force once the need for force was

no longer present” (id., ¶ 21), and he “did not use any force for

the very purpose of causing any harm to [Plaintiff]” (id., ¶ 22).

For her part, Officer McConnell avers:

Officer McConnell has worked for the NCDPS since 2012, serving

as a Correctional Officer at Albemarle on the date in question.

(Docket Entry 45-6, ¶¶ 2-3.) At approximately 8:50 a.m. on

February 8, 2018, “Sergeant Keegan gave a verbal directive to

[Plaintiff] to move a chair away from his bunk.” (Id., ¶ 5.)

“[Plaintiff] returned to his block, grabbed the chair and threw it

downstairs.” (Id., ¶ 6.) “[Plaintiff] then ran downstairs and

struck Sergeant Keegan in the head with a closed fist.” (Id.,

¶ 7.) “[Officer McConnell] then deployed [her] baton using a

forward strike to the left common peroneal of [Plaintiff] to stop

the assault on Sergeant Keegan.” (Id., ¶ 8.) “Sergeant Keegan was

able to gain control of [Plaintiff].” (Id., ¶ 9.) “[Plaintiff]

was then placed in restraints and taken to Medical and then

restrictive housing.” (Id., ¶ 10.)

“During the above-described event, [Officer McConnell]

perceived [Plaintiff’s] refusal to follow directives and aggressive

resistance, as creating a threat to staff safety and the security

of the facility.” (Id., ¶ 11.) “[Officer McConnell] only used

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force to prevent assault on [her]self, and other correctional

staff, and to control [Plaintiff].” (Id., ¶ 12.) “[Officer

McConnell] used only the amount of force necessary to achieve the

correctional objectives of preventing assault, controlling and

subduing [Plaintiff], and ensuring his compliance with lawful

orders.” (Id., ¶ 13.) “[Officer McConnell] did not continue to

use force once the need for force was no longer present” (id.,

¶ 14), and she “did not use any force for the very purpose of

causing any harm to [Plaintiff]” (id., ¶ 15).

Defendants also submitted surveillance video “from the time of

the alleged incident.” (Docket Entry 46 at 1.) Specifically, they

submitted four videos: one of the Officer’s Station, one of a

nearby hallway, and two of the Badin Unit D dorm, taken from

slightly different angles. However, “[t]he actual incident occurs

outside of recorded area.” (Docket Entry 45-1, ¶ 29.) In

addition, the time stamps on the videos do not align. (See, e.g.,

Docket Entry 45-4 at 4 (noting on Incident Report that “Housing

Cameras appear to show different time[] than Officer desk area and

Unit Hallway”).)4 Instead, the dorm videos reflect a time

approximately fourteen minutes earlier than the Officer’s Station

and hallway videos. Moreover, the videos occasionally experience

4 Per the Incident Report, “[t]he housing unit cameras are on

a different recorder than the officer desk area and unit hallway.”

(Id.)

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glitches wherein they temporarily freeze and then jump forward by

multiple seconds.5

Nevertheless, as relevant to the Motion, the videos reflect:

In the middle of the Officer’s Station appears a desk facing

a hallway between two dorms. Due to the angle of the camera,

mounted on the ceiling or top of the wall in the bottom right

5 Per the Incident Report (see, e.g., id. at 8) and

Plaintiff’s recollection (see Docket Entry 51 at 4), Security Risk

Group Intelligence Officer Scott Radosevic escorted Plaintiff to

Restrictive Housing following the incident. (Docket Entry 45-4 at

8.) As such, Plaintiff contends that (i) the time discrepancies

between the videos; (ii) the fact that the Officer’s Station and

hallway videos show Defendants escorting Plaintiff out of the dorm

and into the hallway, where Unit Manager Rhonda Almond assumed

control of Plaintiff and escorted him out of the hallway frame,

rather than Officer Radosevic; and (iii) the fact that the videos

do not show multiple officers “rushing/running” to respond to a

Code 4 (Docket Entry 51 at 7) demonstrate that the videos “w[ere]

altered and edited” (id. at 5). (See generally Docket Entry 51.)

In Plaintiff’s view, this editing occurred “to conceal evidence of

[Sgt.] Keegan’s malicious misconduct.” (Id. at 10.) As a

preliminary matter, the videos do show two male officers responding

to the scene moments after Unit Manager Almond assumed control of

Plaintiff, with the male officers appearing in the doorway between

the Officer Station area and the hallway as Almond escorted

Plaintiff out of the frame at the other end of the hallway.

Officer McConnell gestured for those officers to follow her before

she followed Almond and Plaintiff out of the frame; the video

excerpts cease as those officers walk down the hallway towards the

spot where Almond, Plaintiff, and Officer McConnell exited the

frame. Moreover, for the reasons discussed below, none of

Plaintiff’s quibbles with the videos impact resolution of the

Motion. In any event, Plaintiff offers only speculation, rather

than evidence based on personal knowledge, regarding the alleged

“editing” of the videos. (See generally Docket Entry 51.) Such

speculation does not qualify as competent evidence for summary

judgment purposes. See Robinson v. Fenner, No. 3:18cv117, 2021 WL

771753, at *2 (E.D. Va. Feb. 26, 2021) (“The absence of an

‘affirmative showing of personal knowledge of specific facts’

prevents the consideration of such facts in conducting a summary

judgment analysis.”).

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corner of the room, the video shows only the entrances to the dorm

to the left of the Officer’s Station and hallway well. That dorm

contains two sliding metal doors, each bearing a long vertical

rectangular window; one of the doors appears in the main area of

the Officer’s Station and the other door appears roughly halfway up

the visible portion of the hall. At the right side of the main

area, opposite the left dorm door, the edge of the door into

Plaintiff’s dorm appears. Finally, the bottom right corner of the

video contains part of a pathway through which one can access the

unit hallway. In turn, the video footage from the unit hallway

shows the portion of the hall between the overhead camera and the

doorway through which one can access the Officer’s Station. That

doorway appears at the end of the hall opposite the hallway video

camera, with multiple doors appearing on both sides of the visible

length of the hall between the camera and that doorway.

For their part, the dorm videos show a room with tables and

chairs in the foreground and a bunk area in the rear. The bunk

area contains two levels, with a metal stairway leading up to the

upper tier. The video cameras, which provide an overhead view of

the dorm, provide similar vantage points into the dorm, with one

camera stationed farther to the left in the dayroom area than the

other camera. Neither camera shows the entrance to the Officer’s

Station, but the leftmost video shows more of the dorm area near

the entrance to the Officer’s Station.

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Around 8:50 a.m. on February 8, 2018, the Officer’s Station

video shows both Defendants in the room. Officer McConnell removed

from the bottom left desk drawer a to-go cup, which she placed on

the desktop near where she stood beside the desk chair. Sgt.

Keegan wandered around the room, drinking out of a metal travel

mug, which he put down on the front of the desk as he walked past.

Shortly before the door to Plaintiff’s dorm opened, Sgt. Keegan

retrieved his mug and stood in front of the desk facing Plaintiff’s

dorm door, at which point Plaintiff entered the room. As he

entered, Plaintiff fiddled with his waistband area, seemingly

adjusting his belt. Apparently saying something, Sgt. Keegan

pointed with the hand holding his mug, prompting Plaintiff to turn

and look back into the dorm before facing Sgt. Keegan again.

Plaintiff and Sgt. Keegan engaged in a verbal exchange for a few

seconds, during which Sgt. Keegan nodded and shook his head and

occasionally pointed with the hand holding his mug, as Plaintiff

grew visibly agitated. Plaintiff then strode out of the Officer’s

Station, returning to his dorm. Sgt. Keegan continued looking in

the direction that Plaintiff departed, gesturing and nodding for a

few seconds before the dorm door shut and Officer Keegan turned

away. Sgt. Keegan resumed strolling around the left side of

Officer’s Station area, drinking his beverage. Officer McConnell

remained standing behind and/or beside the desk during these

events.

13

Meanwhile, the very bottom of the farthest left dorm video

briefly shows Plaintiff, looking back towards the Officer’s Station

and pointing as he walked towards the right side of the dorm.

Curving back towards the front of the dorm, Plaintiff temporarily

exited the frame before he reappeared seconds later striding

towards the stairs at the rear half of the dorm. Shortly

thereafter, Plaintiff also appeared in the second dorm video. Both

videos show Plaintiff walking across the dorm, up the stairs, and

to a plastic chair resting near the upper railing. Plaintiff

picked up the chair, looking over the railing as he raised it above

his head and then dropped it over the railing. The chair hit the

bottom floor and bounced towards the right side of the dorm, coming

to rest behind a bunk bed. Although not visible on the rightmost

video, the overturned chair appears towards the rear of the

leftmost video.6 Unlike the inmates who turned to look when the

chair hit the floor, Defendants did not react in any manner that

could indicate that they heard the chair hit the floor in the rear

of the dorm through the closed dorm door.7 Immediately after

dropping the chair over the railing, Plaintiff strode back down the

stairs and in the direction from which he originally entered,

6 Given the vantage point and intervening objects and people,

it remains unclear whether one could see that overturned chair upon

entering the dorm from the Officer’s Station.

7 For example, Defendants did not look in the direction of

Plaintiff’s dorm until Plaintiff returned downstairs after dropping

the chair.

14

exiting the dorm videos. By approximately 14 seconds8 after

Plaintiff exited the videos, inmates began retreating from the

(largely off-video) area nearer the Officer’s Station farther into

the visible portion of the dayroom. For approximately thirty

seconds, inmates gathered and looked in the direction of the

Officer’s Station before they dispersed.

Contemporaneously with Plaintiff reaching the bottom of the

stairs, Sgt. Keegan, standing in front of the door to the dorm at

the left side of the Officer’s Station, turned back in the

direction of the door to Plaintiff’s dorm. Walking towards the

desk, Sgt. Keegan took another drink of his beverage and then

placed the mug on the desk before strolling towards Plaintiff’s

dorm door, which opened for him to pass through. As Sgt. Keegan

exited, Officer McConnell opened the bottom left desk drawer. She

placed both her travel cup and Sgt. Keegan’s travel mug in the

drawer before she walked around the left side of the desk and to

the (open) door to Plaintiff’s dorm. Ten seconds elapsed between

Sgt. Keegan walking through the dorm door and Officer McConnell

arriving at the door, where the video shows her immediately

8 The farthest left video, which shows portions of the dorm

closer to the Officer’s Station, freezes for eleven seconds two

seconds after Plaintiff exited the frame. After it resumes, an

inmate at the very bottom of the frame started standing up from the

chair where he had been seated. As he retreated farther into the

dayroom, another inmate appeared in the frame, walking backwards

from the direction of the Officer’s Station entrance, watching

activity in that area.

15

assuming a bracing stance before moving back and forth. Six

seconds later, she deployed the baton. The video shows only

glimpses of Officer McConnell during these events, before she moved

completely out of view into the dorm. Approximately twenty-six

seconds later, Plaintiff, with his hands handcuffed behind his back

and Sgt. Keegan holding his arm, entered the Officer’s Station,

followed by Sgt. Keegan and Officer McConnell. They walked through

the Officer’s Station and into the unit hallway, where Unit Manager

Rhoda Almond assumed control of Plaintiff. Approximately twenty-

five seconds after Defendants and Plaintiff exited the Officer’s

Station video, two male officers appeared in the hallway between

the two dorms. Those officers also walked through the Officer’s

Station and into the unit hallway, where they followed Almond,

Plaintiff, and Officer McConnell down the hallway.

DISCUSSION

I. Relevant Standards

A. Summary Judgment Standards

“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

16

absence of such dispute. See 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,

[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).

Nevertheless, “[o]nly 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. 4:08-cv-2800,

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)),

17

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). Further, factual

allegations in a complaint or other 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 4499099, at *5 n.14 (M.D.N.C. Sept. 27, 2011),

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

However, “where affidavits present conflicting versions of the

facts which require credibility determinations, summary judgment

cannot lie.” Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016)

(internal quotation marks omitted). Yet, “[w]lhen opposing parties

tell two different stories, one of which is blatantly contradicted

by the record, 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.” Scott v. Harris, 550 U.S. 372,

380 (2007); see also, e.g., Love v. Beasley, 788 F. App’x 935, 937

(4th Cir. 2020) (concluding, on review of summary judgment

decision, “that the district court did not err in finding that [a

defendant] did not punch [the plaintiff] as alleged, because video

of the incident confirms [the defendant’s] denial”). Notably,

though, in Scott,

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the [United States] Supreme Court was faced with a

videotape of the incident in question that “utterly

discredited” the plaintiff’s account, rendering it a

“visible fiction.” 550 U.S. at 380–81. As between a

videotape of undisputed authenticity, id. at 378, and the

plaintiff’s story, the Court held, the videotape should

prevail. Where the nonmoving plaintiff’s account is

“blatantly contradicted by the record” so that “no

reasonable jury could believe it,” it should not be

adopted by a court ruling on a motion for summary

judgment. Id. at 380.

As [the United States Court of Appeals for the

Fourth Circuit] ha[s] clarified, Scott is the exception,

not the rule. It does not “abrogate the proper summary

judgment analysis, which in qualified immunity cases

‘usually means adopting . . . the plaintiff’s version of

the facts.’” Witt v. W. Va. State Police, Troop 2, 633

F.3d 272, 276 (4th Cir. 2011) (quoting Scott, 550 U.S. at

378). That standard continues to apply in the face of

“documentary evidence” that lends support to a government

official’s account of events, id., or even makes it

“unlikely” that the plaintiff’s account is true, United

States v. Hughes, 606 F.3d 311, 319–20 (6th Cir. 2010)

(holding that Scott does not apply to photographs

rendering plaintiff’s account “unlikely”). Summary

judgment is proper under Scott only when there is

evidence — like the videotape in Scott itself — of

undisputed authenticity that shows some material element

of the plaintiff’s account to be “blatantly and

demonstrably false.” Blaylock v. City of Phila., 504

F.3d 405, 414 (3d Cir. 2007) (refusing to extend Scott to

evidence in form of police photographs that fail to

depict “all of the defendant’s conduct and all of the

necessary context”); see also Witt, 633 F.3d at 277

(holding Scott inapplicable to soundless video that does

not capture key disputed facts).

Harris v. Pittman, 927 F.3d 266, 275–76 (4th Cir. 2019) (ellipsis

in original) (parallel citations omitted).

B. Excessive Force Standards

“The Eighth Amendment protects prisoners from ‘unnecessary and

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

19

F.3d 89, 97 (4th Cir. 2017) (quoting Estelle v. Gamble, 429 U.S.

97, 103 (1976)). “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 (Ath Cir.

2008) (internal quotation marks omitted).

Notably, a prisoner need not suffer a significant injury to

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

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

and sadistically use force to cause harm, contemporary standards of

decency always are violated. This is true whether or not

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

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

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

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

20

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 the Fourth Circuit recently

explained:

Although [courts] once considered the severity of an

inmate’s injuries under the objective component, the

Supreme Court has clarified that what matters is the

severity of the force employed. So long as the force

used is more than de minimis, the objective component is

satisfied, regardless of the extent of the injury.

Dean v. Jones, 984 F.3d 295, 303 (4th Cir. 2021) (emphasis in

original) (citation omitted).

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

in excessive force claims is ‘wantonness in the infliction of

pain.’” Iko, 535 F.3d 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 Supreme Court has

identified four factors to assist courts in determining whether an

officer acted with “‘wantonness’”:

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

relationship between the need and the amount of force

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

perceived threat that the application of force was

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

the severity of a forceful response.”

21

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.

“In considering the reasonableness of an officer’s actions,

[the court] must consider the facts at the moment that the

challenged force was employed.” Smith v. Ray, 781 F.3d 95, 101

(4th Cir. 2015). Notably, a plaintiff’s failure to obey a direct

order does not justify a defendant’s subsequent use of “gratuitous

or excessive force against [him].” Corselli v. Coughlin, 842 F.2d

23, 27 (2d Cir. 1988); see also, e.g., Saunders v. Duke, 766 F.3d

1262, 1269 (11th Cir. 2014) (explaining that, “even if the

complaint could be read to allege that [the plaintiff] disobeyed an

order . . ., that minor transgression does not mean that the force

allegedly used was a constitutionally permissible response”);

Miller, 913 F.2d at 1088-89 (vacating grant of summary judgment to

prison guard even though inmate plaintiff turned in doorway towards

and insulted guard rather than obeying order to go through doorway,

noting that “[the plaintiff’s] version of the incident supports a

reasonable inference that [the defendant] intended to provoke an

incident so as to allow [the defendant] to beat [the plaintiff]

under the guise of maintaining order or defending himself”).

22

II. Analysis

Defendants seek summary judgment on the grounds that “[t]he

record evidence, even when viewed in a light most favorable to

Plaintiff, does not support the subjective component of an

excessive force claim.” (Docket Entry 43 at 7.)9 According to

Defendants:

the record evidence demonstrates that the need for

Defendants’ use of hands-on physical force arose when

Plaintiff refused [a] direct order to place his hands

behind his back and when Plaintiff struck [Sgt.] Keegan

in the mouth after refusing said direct order. (Keegan

Aff. ¶¶ 9-14; McConnell Aff. ¶¶ 7-9). Moreover, the

summary judgment evidence indicates that Defendants

perceived Plaintiff’s refusal to follow directives and

aggressive resistance, as creating a threat to staff

safety and the security of the facility and only used as

much force as was necessary to prevent imminent assault

and regain control of Plaintiff. (Keegan Aff. ¶¶ 18-20;

McConnell Aff. ¶¶ 11-13)[.] On this record, Plaintiff

cannot present any credible evidence upon which a

reasonable jury could find that Defendants used force,

sadistically and maliciously, for the very purpose of

inflicting pain or injury. Therefore, there are no

genuine issues as to any material fact and Defendants are

entitled to judgment as a matter of law.

(Docket Entry 43 at 6.)10

9 As relevant here, Defendants do not assert that Sgt. Keegan

applied only de minimis force in his encounter with Plaintiff.

(See id. at 6-10.) In any event, Plaintiff averred that Sgt.

Keegan applied sufficient force to Plaintiff’s throat/windpipe to

“slam[]” him into a wall (Docket Entry 2 at 22), establishing that

Sgt. Keegan applied more than de minimis force.

10 Defendants also seek summary judgment on any official-

capacity claims that Plaintiff pursues against them. (See id. at

10.) It remains unclear whether Plaintiff pursues official-

capacity claims against Defendants. (Compare Docket Entry 2 at 3

(marking both official capacity and individual capacity for

Defendants), with id. at 37 (seeking monetary damages from

23

A. Sgt. Keegan

Contrary to Defendants’ contentions, when viewing the record

in the light most favorable to Plaintiff, a material factual

dispute exists regarding whether Sgt. Keegan applied only the

amount of force necessary to obtain control of Plaintiff when

Plaintiff attempted to walk past Sgt. Keegan after his tacit order

to submit to handcuffs"! (see, e.g., Docket Entry 2 at 22 (averring

that Sgt. Keegan grabbed Plaintiff by the throat and aggressively

slammed him into a nearby wall after expressing desire to use force

against him); Docket Entry 55 at 7 (averring that Sgt. Keegan

applied “pressure/force” to Plaintiff’s throat/windpipe “to

ram/rush Plaintiff into the nearby wall”)). See Miller, 913 F.2d

at 1088-89 (overturning summary judgment award where “[the

Defendants solely “in [their] individual capacity”) In any

event, Plaintiff seeks only monetary relief for Defendants’ alleged

excessive force. (See id. at 37.) Defendants contend that the

Eleventh Amendment bars such claims. (See Docket Entry 43 at 10.)

Section 1983 does not permit damages suits against state personnel

acting in their official capacity. See Will v. Michigan Dep’t of

State Police, 491 U.S. 58, 70-71 (1989). Accordingly, the Court

should grant Defendants’ request for summary judgment on

Plaintiff’s official-capacity claims, if any.

11 Plaintiff insists that Sgt. Keegan never ordered him to

submit to handcuffs. (See, e.g., Docket Entry 2 at 25.) However,

Plaintiff reports that, when he met Sgt. Keegan in the middle of

the dorm, Sgt. “Keegan held a pair of handcuffs in his hand” and

told Plaintiff, “‘I hope you refuse to cuff up so I can make you!’”

(Id. at 22.) Although Sgt. Keegan did not answer Plaintiff’s

subsequent question as to whether that statement “[wa]s an order or

a challenge’” (id.), the circumstances establish that it

constituted an order to submit to handcuffs (albeit

unprofessionally phrased).

24

plaintiff’s] version of the incident supports a reasonable

inference that [the defendant] intended to provoke an incident so

as to allow [the defendant] to beat [the plaintiff] under the guise

of maintaining order or defending himself”); Hicks v. Sadie, No.

1:19cv115, 2022 WL 2952507, at *21 (M.D.N.C. July 26, 2022)

(finding material factual dispute as to whether officer “applied

only the force necessary to maintain control of [the p]laintiff”

where officer “made comments evidencing intent to retaliate while

applying pressure to [the p]laintiff’s handcuffed arms”).12

Consideration of the Whitley factors does not alter this

conclusion. As to the first factor, “the need for the application

of force,” Iko, 535 F.3d at 239 (internal quotation marks omitted),

construed in the light most favorable to Plaintiff, the record

reflects that, immediately after grabbing and pushing on

Plaintiff’s arm as he attempted to walk past (see Docket Entry 2 at

22), Sgt. Keegan grabbed Plaintiff by the throat/windpipe and used

that grip to “ram” Plaintiff into the wall (Docket Entry 55 at 7),

12 Because a material factual dispute regarding Sgt. Keegan’s

initial actions precludes summary judgment in his favor, the Court

need not separately analyze whether Sgt. Keegan’s and Plaintiff’s

subsequent interactions independently require denial of the Motion.

See Miller, 913 F.2d at 1088-89 (vacating summary judgment against

the plaintiff on excessive force claim even though, during

incident, the plaintiff turned to face officer, who raised baton,

whereupon the plaintiff raised his handcuffed hands and, in

response to officer’s subsequent blows and threats, allegedly

“reacted by pushing the officer away and picking up a broom handle

to protect himself” before additional officers helped subdue the

plaintiff).

25

“aggressively . . . . attempting to bang Plaintiff’s head into the

wall” (Docket Entry 2 at 22). Although Plaintiff’s noncompliance

may have warranted some use of force,13 Plaintiff avers that he “had

shown no signs of an assault or attempted assault on [Sgt.]

Keegan.” (Id. at 23.) Accordingly, this factor only slightly

favors Sgt. Keegan’s position. See, e.g., Smith v. Management &

Training Corp., No. 3:17-cv-629, 2019 WL 4658365, at *4 (S.D. Miss.

Sept. 24, 2019) (denying summary judgment on excessive force claim

where inmate disobeyed order, but parties “disagree[d] as to the

degree of force [the officer] used,” explaining that, “[w]hile [the

officer] contends that he only used the force necessary to subdue

[the plaintiff] (what he describes as a ‘soft empty hands

technique’), [the inmate] contends that [the officer] threw him

down and choked him”).

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

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

quotation marks omitted), supports denial of summary judgment.

Here, Plaintiff asserts that Sgt. Keegan grabbed him around the

throat, “ram[ming]” (Docket Entry 55 at 7) and “slam[ming]” him

into the wall (Docket Entry 2 at 22). This evidence (if believed)

13 In arguing for summary judgment on Sgt. Keegan’s behalf,

Defendants rely solely on Plaintiff’s failure to comply with Sgt.

Keegan’s order to submit to handcuffs. (See, e.g., Docket Entry 43

at 6-7.) However, consideration of Plaintiff’s response to Sgt.

Keegan’s directive to move the chair does not alter this analysis.

26

“tend[s] to show that the amount of force used was disproportionate

to the need for force.” Iko, 535 F.3d at 240.

The remaining factors, “the extent of any reasonably perceived

threat that the application of force was intended to quell” and

“any efforts made to temper the severity of a forceful response,”

id. at 239 (internal quotation marks omitted), also tilt against

summary judgment. Plaintiff’s evidence indicates that, after

expressing a desire to “‘make’” Plaintiff submit to handcuffs, Sgt.

Keegan grabbed Plaintiff by the throat as Plaintiff walked past

Sgt. Keegan and, using that grip, slammed him into a wall. (Docket

Entry 2 at 22.) Before gripping Plaintiff by the throat, Sgt.

Keegan had taken possession of Plaintiff’s arm, but instead of

using that grip to ensure Plaintiff’s compliance with the (indirect

and provocative) order to submit to handcuffs, Sgt. Keegan instead

escalated his use of force against Plaintiff, who “had shown no

signs of an assault or attempted assault on [Sgt.] Keegan” (id. at

23). (See id. at 22-23.)

“Al1L told,” at this juncture in the proceedings, “these

factors combine to provide an inference that [Sgt. Keegan] wantonly

inflicted pain upon [Plaintiff by grabbing him by the throat and

slamming him against the wall].” Iko, 535 F.3d at 240; accord,

e.g., Miller, 913 F.2d at 1088-89; Corselli, 842 F.2d at 26-27; see

also Sidney v. Wilson, No. 03 Civ. 0830, 2007 WL 4208626, at *5-6

(S.D.N.Y. Nov. 21, 2007) (denying summary judgment notwithstanding

27

inmate’s admitted failure to comply with order where inmate

asserted that he “never physically threatened” officer, who

allegedly threw him to ground, pinned his head to floor, and kicked

him).

Sgt. Keegan contends, however, that qualified immunity shields

him from Plaintiff’s excessive force claim. (See Docket Entry 43

at 10-11.) Specifically, Sgt. Keegan asserts:

Even if Plaintiff could establish a constitutional

violation, which Defendants assert he cannot, Defendants

would nonetheless be entitled to qualified immunity. The

record evidence establishes that Defendants only used

[sic] Defendants’ use of hands-on physical force arose

when Plaintiff refused [a] direct order to place his

hands behind his back and when Plaintiff struck [Sgt.]

Keegan in the mouth after refusing said direct order.

(Keegan Aff. ¶¶ 9-14; McConnell Aff. ¶¶ 7-9).[14]

Accordingly, on this evidence, no reasonable fact finder

could find that a reasonable correctional officer in

Defendants’ position should have known that their conduct

would constitute excessive force. Thus, the conduct of

Defendants did violate [sic] a clearly established

constitutional right of Plaintiff. Therefore, there are

no genuine issues as to any material fact and Defendants

are entitled to judgment as a matter of law.

(Docket Entry 43 at 11.)

The Court applies a two-step analysis to qualified immunity

defenses, asking “whether the facts alleged or shown, taken in the

14 To the extent that Defendants do not confine their latter

assertion to Officer McConnell’s actions (compare Docket Entry 45-

5, ¶¶ 9-16 (acknowledging that Sgt. Keegan utilized force against

Plaintiff prior to Plaintiff’s punch), with Docket Entry 45-6,

¶¶ 5-9 (lacking description of Sgt. Keegan’s physical actions prior

to Plaintiff’s punch and Officer McConnell’s baton deployment)), it

bears noting that Plaintiff avers that Sgt. Keegan utilized force

against him prior to Plaintiff punching Sgt. Keegan (see, e.g.,

Docket Entry 2 at 22-24).

28

light most favorable to the plaintiff, establish that the

[correctional] officer’s actions violated a constitutional right”

and “whether the right at issue was ‘clearly established’ at the

time of the officer’s conduct.” Harris, 927 F.3d at 279 (certain

internal quotation marks omitted). “The plaintiff bears the burden

of proof on the first question — i.e., whether a constitutional

violation occurred [— and t]he defendant bears the burden of proof

on the second question — i.e., entitlement to qualified immunity.”

Henry v. Purnell, 501 F.3d 374, 377-78 (4th Cir. 2007) (citations

omitted). For the reasons stated above, the facts, construed in

the light most favorable to Plaintiff, would support a finding that

Sgt. Keegan violated Plaintiff’s eighth-amendment rights.

Moreover, courts have long held that officers cannot use

“gratuitous or excessive force against” inmates who fail to comply

with their orders. Corselli, 842 F.2d at 27; see also Miller, 913

F.2d at 1088-89. Notwithstanding that authority, Defendants’ brief

in support of the Motion “contains no citation to cases actually

applying the ‘clearly established’ prong of the qualified immunity

test,” Hensley on behalf of N.C. v. Price, 876 F.3d 573, 581 n.5

(4th Cir. 2017), in relevant circumstances. As such, Sgt. Keegan

has failed to establish his “entitlement to qualified immunity,”

Henry, 501 F.3d at 378, at this stage of the proceedings.

29

B. Officer McConnell

As for Officer McConnell, the evidence, viewed in the light

most favorable to Plaintiff, reflects that, after Plaintiff punched

Sgt. Keegan, Officer McConnell hit Plaintiff in the leg with her

baton while yelling “‘stop!’” (Docket Entry 2 at 24; see id. at

23-24.) Notably, per Plaintiff, Officer McConnell “did not hit

Plaintiff hard at all.” (Docket Entry 55 at 13.) Thus, the record

establishes that Officer McConnell intervened, with a verbal

command and a “not . . . hard” hit to Plaintiff’s leg, to stop

Plaintiff, who had just punched another officer. Under such

circumstances, all four Whitley factors weigh in Officer

McConnell’s favor. The Court should therefore grant Officer

McConnell’s request for summary judgment on Plaintiff’s excessive

force claim.15

15 To the extent Plaintiff seeks to assert a failure-to-

intervene claim against Officer McConnell (see, e.g., Docket Entry

2 at 24 (“[Officer McConnell failed to] intervene[] to

preserve/provide security to Plaintiff, while Plaintiff was under

attack”)), such claim fails. An officer who “(1) is confronted

with a fellow officer’s illegal act, (2) possesses the power to

prevent it, and (3) chooses not to act, . . . may be deemed an

accomplice and treated accordingly.” Randall v. Prince George’s

Cnty., 302 F.3d 188, 203 (4th Cir. 2002). Plaintiff maintains that

Officer McConnell “watched the entire incident [between Sgt. Keegan

and Plaintiff] from the entrance of the dorm” but did not intervene

until Plaintiff punched Sgt. Keegan. (Docket Entry 2 at 24.)

However, the video — in a section not challenged by Plaintiff (see

generally Docket Entry 51) — establishes that Officer McConnell did

not passively watch the entire altercation between Sgt. Keegan and

Plaintiff from the dorm doorway. Rather, upon reaching the dorm

doorway ten seconds after Sgt. Keegan departed the Officer’s

Station, Officer McConnell immediately physically engaged with the

altercation, deploying her baton a mere six seconds after her

30

CONCLUSION

Plaintiff cannot pursue a claim for damages against Defendants

in their official capacity under Section 1983, and the record does

not support an excessive force claim against Officer McConnell.

However, material factual disputes preclude summary judgment on

Plaintiff’s excessive force claim against Sgt. Keegan.

IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 42)

be granted in part and denied in part as follows: summary judgment

should be entered on Plaintiff’s official capacity claims, if any,

and his individual-capacity claim against Officer McConnell, but

arrival at the dorm doorway. Accordingly, on the current record,

no reasonable jury could find that Officer McConnell possessed a

reasonable opportunity to intervene to stop Sgt. Keegan’s actions

against Plaintiff. See, e.g., O’Neill v. Krzeminski, 839 F.2d 9,

11-12 (2d Cir. 1988) (“Even when the evidence is viewed in the

light most favorable to the plaintiff, there is insufficient

evidence to permit a jury reasonably to conclude that [the

officer’s] failure to intercede was a proximate cause of the

beating. The three blows were struck in such rapid succession that

[the officer] had no realistic opportunity to attempt to prevent

them. This was not an episode of sufficient duration to support a

conclusion that an officer who stood by without trying to assist

the victim became a tacit collaborator.”); Kelly v. Solomon, No.

3:17-cv-311, 2020 WL 247539, at *2 (W.D.N.C. Jan. 15, 2020)

(rejecting failure to intervene claim against officer Ingram where

another officer’s “alleged strike to [the p]laintiff’s head . . .

would have been quick and Ingram would not have had a reasonable

opportunity to intervene”).

31

summary judgment should be denied on Plaintiff’s individual-

capacity excessive force claim against Sgt. Keegan.

This 16th day of August, 2022.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

32