Opinion

GRADY v. SMITH

Court: District Court, M.D. North Carolina
Filed: Jan 9, 2023
Cited by: 0 cases
Authority: More cited than 24.7%

“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.”

How later courts described this case

“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.”
reversing grant of summary judgment to guards who “refused to wash off the mace or permit [the plaintiff] to wash himself, informing him that he would not get a shower and that the mace was ‘his problem’”
“Whether defendants’ use of the spray was objectively harmful enough to violate plaintiff’s Eighth Amendment rights turns in part on how long plaintiff was sprayed and whether he was adequately irrigated afterwards or left to suffer unnecessarily.”
recognizing potential propriety of initial consideration of latter prong for “cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TRACEY TERRELL GRADY, )

)

Plaintiff, )

)

v. ) 1:20cv54

)

OFFICER. B. SMITH, 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 (i) the “Motion for

Summary Judgment” (Docket Entry 51)1 (“Defendants’ Motion”) filed

by Officer Copple, Officer B. Smith, and Sergeant Jernigan2

(collectively, the “Defendants”) and (ii) the “‘Motion for’ Summary

Judgment in Legal Opposition” (Docket Entry 58)3 (“Plaintiff’s

1 For legibility reasons, this Opinion uses standardized

capitalization and spelling and omits the word “the” in front of

“Plaintiff” and “Defendants” in all quotations from the parties’

materials.

2 Plaintiff initially spelled this defendant’s name

“Jernnigan” (see, e.g., Docket Entry 1 at 3), but “Jernigan”

constitutes the proper spelling (see, e.g., Docket Entry 55-1 at

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

pagination.]

3 Because Plaintiff captions this document as a “Motion” in

which, “pursuant to Rule 56 of the Federal Rules of Civil

Procedure,” he “move[s] for summary judgment, in legal opposition,

to the Defendants’ Motion for Summary Judgment” (id. at 1), the

undersigned, in an abundance of caution, treats Plaintiff’s filing

as a motion. Nevertheless, “Plaintiff’s Motion” and supporting

materials more appropriately constitute a response in opposition to

(continued...)

Motion”) filed by Tracey Terrell Grady (the “Plaintiff”). For the

reasons that follow, the Court should grant Defendants’ Motion and

deny Plaintiff’s Motion (collectively, the “Motions”).

BACKGROUND

Pursuant to 42 U.S.C. § 1983, Plaintiff, an inmate with the

North Carolina Department of Public Safety (the “NCDPS”), commenced

this action against, inter alia, Defendants for alleged violations

of his constitutional rights during his incarceration at Southern

Correctional Institution on November 15, 2019. (See Docket Entry

1 (the “Complaint”) at 1-42.)4 In accordance with 28 U.S.C.

§ 1915A, the undersigned reviewed the Complaint. (See Docket Entry

6 (the “Recommendation”) at 1-14.) As relevant here, the

Recommendation explained:

According to the Compliant, on November 15, 2019,

[Officer] Smith knowingly violated prison procedure,

which allowed only one person in a cell in close custody

areas, by opening Plaintiff’s cell door and allowing

3(...continued)

Defendants’ Motion rather than an independent motion for summary

judgment in Plaintiff’s favor. (See, e.g., id. (asserting that

“there exists a genuine issue of material facts which support

Plaintiff[’s] claims of constitutional violations” and asking the

“Court[] to grant summary judgment in favor of Plaintiff [by]

granting him a trial by a jury base[d] on the merits of this

case”); Docket Entry 59 at 8 (asserting as his “Closing Legal

Arguments” that “[t]he nonmoving party should be granted summary

judgment considering that there is a genuine issue of material

facts that can be presented at a jury trial”).)

4 Plaintiff sues Officer Smith and Sergeant Jernigan only in

their individual capacities (see id. at 2, 6-7), but sues Officer

Copple in both his individual and official capacities (see id. at

16-17).

another inmate to enter. (Docket Entry 1 at 6.) That

inmate allegedly then attacked and raped Plaintiff.

(Id.) It appears that Plaintiff attempts to assert an

Eighth Amendment claim against [Officer Smith] for

failing to protect him from an assault by another

inmate. . . .

* * * * *

At this point in the proceedings, Plaintiff

sufficiently alleges a claim that [Officer] Smith created

a known safety risk by violating a policy designed to

protect Plaintiff from that risk. As such, Plaintiff may

proceed with a claim against [Officer] Smith for

deliberate indifference.

The Complaint next asserts that [Sergeant Jernigan]

violated Plaintiff’s rights by spraying him in the face

as the other inmate attacked him and then taking

Plaintiff to a segregated lock up while injured and

bleeding. (Docket Entry 1 at 7.) These allegations

potentially state claims for excessive force and

deliberate indifference to Plaintiff’s medical

needs. . . .

Although the Complaint does not contain great detail

concerning the allegations against [Sergeant Jernigan],

it suffices at this point to state claims for relief

based on excessive force and deliberate indifference

concerning a lack of treatment for Plaintiff’s injuries.

(Docket Entry 6 at 4-6.)

The Recommendation further observed:

Separately, the Complaint alleges that [Officer]

Copple used excessive force and engaged in cruel and

unusual punishment while transporting Plaintiff.

Specifically, [Officer] Copple allegedly clamped

Plaintiff’s handcuffs and leg irons so tightly that

Plaintiff lost circulation in his hands and suffered

“pain and injuries and marks and [scars],” as well as

bruising, on his legs. (Docket Entry 1 at 16.) The

Complaint also states that [Officer] Copple spoke

disrespectfully to Plaintiff. (Id.) Speaking

disrespectfully to a prisoner does not violate the

Constitution. However, the remaining allegations

sufficiently support claims for excessive force or cruel

and unusual punishment at this point in the proceedings

and those claims against [Officer] Copple should proceed.

(Docket Entry 6 at 10.)

Accordingly, the Recommendation advised that “Plaintiff’s

claims for deliberate indifference against [Officer] Smith,

excessive force and deliberate indifference against [Sergeant

Jernigan], and excessive force or cruel and unusual punishment

against [Officer] Copple” should proceed, with all other claims

dismissed “for failure to state a claim upon which relief may be

granted” and/or due to immunity. (Id. at 12.) The Court (per

United States District Judge Catherine C. Eagles) adopted that

recommendation. (See Docket Entry 13 at 1.)

The Court (per the undersigned) thereafter entered a

Scheduling Order, which established a discovery deadline of April

22, 2022. (Text Order dated Aug. 17, 2021.) In accordance with

this Court’s Local Rules, see M.D.N.C. LR 56.1(a), Defendants

timely filed both a notice of intention to file a dispositive

motion and Defendants’ Motion (see Docket Entries 44, 49-51; see

also Text Orders dated June 22, 2022, and June 24, 2022).

Plaintiff neither filed a notice of intent to file a dispositive

motion nor filed a timely motion for summary judgment. (See Docket

Entries dated Mar. 4, 2022, to Aug. 8, 2022.) Instead, Plaintiff

filed Plaintiff’s Motion within the time permitted for him to

respond to Defendants’ Motion. (See Text Order dated July 21,

2022; see also Docket Entry 58 at 2.) Regardless, as relevant to

the Motions, the record reflects:

In November 2019, Officer Smith and Officer Copple served as

NCDPS Correctional Officers, and Sergeant Jernigan served as an

NCDPS Correctional Sergeant, at Southern Correctional Institution.

(Docket Entry 52-2, ¶ 2; Docket Entry 52-3, ¶ 2; Docket Entry 55-1,

¶ 2.) Per Officer Smith, on November 15, 2019, she “was working in

the Control Booth for the Falkland Unit.” (Docket Entry 52-2,

¶ 3.) Officer Smith further avers:

While in the Control Booth, [she] noticed a fight

between offender Michael Lord [(at times, “M.L.”)] and

[Plaintiff]. Using the radio, [she] called for

assistance. Additional staff reported to the area, and

were able to break up the fight between [M.L.] and

[Plaintiff].

[Officer Smith] never “opened” Plaintiff’s door as

he alleged in the Complaint. At the time of the fight,

all offenders’ doors were opened and they were allowed to

be in the dayroom. [Officer Smith] would never open an

offender[’s] door to specifically cause him harm.

[Plaintiff] is just another inmate to [Officer

Smith]. [Officer Smith] did not then, and do[es] not

now, hold any feelings of ill-will towards him. [She]

ha[s] never wanted to harm [Plaintiff]. By completing

the above actions, [she] was merely performing [her]

Correctional Officer duties.

(Id., ¶¶ 3-5 (internal paragraph numbering omitted).)

For his part, Officer Copple avers:

On November 15, 2019, [Officer Copple] heard a call

for assistance on the radio from the Falkland Unit.

Multiple staff members responded to the call for

assistance. When [Officer Copple] reported to the

Falkland Unit, [Plaintiff] and [M.L.] were fighting

inside one of the cells. Both offenders were given

multiple orders to stop fighting, but neither offender

complied with the orders. Unit Manager Harris gave the

order to administer OC Pepper Spray as a means of

stopping the fight. Other staff members administered OC

Pepper Spray, which caused the offenders to stop

fighting. Other staff (not [Officer Copple]) placed both

offender [sic] in restraints and escorted them to the

restrictive housing unit to be decontaminated. [Officer

Copple] assisted with the decontamination of [Plaintiff].

While doing so, [Plaintiff] told [Officer Copple] that

[M.L.] tried to rape him. He claimed that [M.L.]

“wouldn’t let me out of my cell” and “held me against my

while [sic] and tried to fuck me.” [Officer Copple] then

notified Sgt. Jernigan of the allegations. Sgt. Jernigan

instructed [Plaintiff] to step out of the shower to

preserve any evidence. Sgt. Jernigan asked [Plaintiff]

what happened, and [Plaintiff] again reported that [M.L.]

had tried to rape him. Sgt. Jernigan then notified the

[officer in charge (at times, the “OIC”)] and medical

about the allegations. Both offenders were then placed

in separate cells and monitored until seen by medical.

After medical saw [Plaintiff], they determined that

he needed to be taken to the local hospital. Another

officer and [Officer Copple] prepared to take [Plaintiff]

to the hospital. Before leaving for the hospital,

[Plaintiff] complained that the handcuffs were too tight.

[Officer Copple] had Lt. Goodwin (the OIC) check the

tightness of the restraints before [the officers and

Plaintiff] left the facility, and he determined that they

were tightened appropriately. Thereafter, [Officer

Copple and another officer] took [Plaintiff] to the

hospital to be evaluated. After the hospital was done

with [Plaintiff], [they] brought him back to the facility

later that afternoon.

[Plaintiff] is just another inmate to [Officer

Copple]. [Officer Copple] did not then, and do[es] not

now, hold any feelings of ill-will towards him. [Officer

Copple] ha[s] never wanted to harm [Plaintiff]. By

completing the above actions, [Officer Copple] was merely

performing [his] Correctional Officer duties.

(Docket Entry 52-3, ¶¶ 3-5 (internal paragraph numbering omitted).)

In turn, Sergeant Jernigan avers:

As a Correctional Sergeant, [his] main duties are to

supervise the correctional officers in [his] unit,

supervise the inmates in [his] unit, enforce policy and

housing unit rules, and assist other correctional

personnel when necessary. [Sergeant Jernigan’s] job

duties do not include anything medically related. [He]

do[es] not have any specialized medical or dental

training. The NCDPS Policy Manual states that

“[c]linical matters involving medical, nursing, mental

health and dental judgments are the sole province of

licensed health care providers.” NCDPS Policy Manual,

Ch. E, Sec. .0207. As such, unless the emergency is

apparent, healthcare providers are required to make

decisions of which offender to see and when, and how to

treat offenders. If it is a readily apparent emergency,

[Sergeant Jernigan] can call a Code Blue to request

immediate medical assistance.

On November 15, 2019, [Sergeant Jernigan] heard a

call for assistance on the radio from the Falkland Unit.

Multiple staff members reported to the Falkland Unit.

When [Sergeant Jernigan] reported to the Falkland Unit,

[Plaintiff] and [M.L.] were fighting inside one of the

cells. Both offenders were given multiple orders to stop

fighting, but neither offender complied with the orders.

Unit Manager Harris gave the order to administer OC

Pepper Spray as a means of stopping the fight. [Sergeant

Jernigan] administered one one-second burst of OC Pepper

Spray and Sgt. Willoughby also administered OC Pepper

Spray.[5] After both offenders were sprayed with OC

Pepper Spray, they stopped fighting. Staff was then able

to place both offender [sic] in restraints. Thereafter,

both offenders were taken to restrictive housing to be

decontaminated. [Sergeant Jernigan] assisted in

escorting [Plaintiff] to restrictive housing. The

medical department was promptly notified that both

offenders needed a medical evaluation. While being

decontaminated, [Plaintiff] told Officer Copple that

[M.L.] had raped him. Officer Copple relayed the

allegation to [Sergeant Jernigan], and [Sergeant

Jernigan] instructed [Plaintiff] to step out of the

shower to preserve any physical evidence. [Sergeant

5 Per the NCDPS Incident Report regarding this event,

Sergeant Jernigan sprayed M.L. with pepper spray and Officer

Willoughby sprayed Plaintiff with pepper spray. (See Docket Entry

52-1 at 14.)

Jernigan] asked [Plaintiff] what happened, and he told

[Sergeant Jernigan] that that [sic] [M.L.] had tried to

put his finger and penis in [Plaintiff’s] rectum.

[Sergeant Jernigan] immediately notified the

Officer-in-Charge, Lt. Goodwin and medical about the

allegations. Both offenders were then placed in separate

cells and monitored until cleared by medical and the OIC.

[Sergeant Jernigan] only used OC Pepper Spray to

stop the two offenders from fighting. They had been

given multiple direct orders to stop fighting and they

refused. The OC Pepper Spray was effective in getting

the two offenders to stop fighting. [Sergeant Jernigan]

did not use OC Pepper Spray for sadistic or malicious

reason, but instead to restore institutional order and

ensure offender safety.

After the fight ended, the medical department was

promptly notified that both offenders needed to be

medically evaluated. Both offenders were conscious and

able to walk. Neither offender looked seriously injured

beyond the typical injuries associated with a fight

(bumps, bruises, scrapes), except that [Plaintiff] was

missing some teeth. Since [Sergeant Jernigan] do[es] not

have any specialized dental training, [he] did not know

that [Plaintiff’s] knocked-out teeth were a

time-sensitive issue. Based on [his] observations,

[Sergeant Jernigan] did not think that [Plaintiff] was in

need of emergency medical care. Therefore, a Code Blue

was not necessary.

[Plaintiff] is just another inmate to [Sergeant

Jernigan]. [Sergeant Jernigan] did not then, and do[es]

not now, hold any feelings of ill-will towards him.

[Sergeant Jernigan] ha[s] never wanted to harm

[Plaintiff]. By completing the above actions, [Sergeant

Jernigan] was merely performing [his] Correctional

Sergeant duties.

(Docket Entry 55-1, ¶¶ 3-7 (certain brackets in original) (footnote

and internal paragraph numbering omitted).)

Conversely, Plaintiff avers:

On November 15th 2019, while house[d] at Southern

C.I. after I return[ed] from work in the kitchen, I came

[into] Franklin Unit, Cell 1 Down, Officer[] Smith

unlock[ed] my cell door for me later I went out to get

the broom to clean my cell I also ask[ed] the cell block

for the mop that’s when I return[ed] to my Cell 1 Down

and closed the door behind me later I heard a click my

cell door was pop and inmate [M.L.] came He notice[d] I

was naked changing my wet kitchen clothes so I pull[ed]

my pants back on that’s when [M.L.] tried to rape me

Before I could put my pant[s] on he push his penis in my

anus and held me against my will I push[ed] him away and

quickly pull[ed] up my pants [M.L.] struck me in the

mouth and knock[ed] out my teeth and cut my lip my right

eye [was] badly damaged This was not a fight in general

[M.L.] tried to rape me. When Sgt. Jernigan, and Sgt.

Willoughby, was ordered to pepper spray me by the unit

manager Mrs. Harris [M.L.] was on top of me holding me

down on my cell bunk bed. Per policy he was in a[n]

unauthorized cell the day room was open for inmate[s] to

eat and watch T.V. But in close custody at Southern C.I.

the policy clearly states one inmate to a cell Officer[]

B. Smith was deliberate[ly] indifferent to my safety

needs when she fail[ed] to shield and protect me by law

when she open[ed] my cell from the control booth she’s

legally liable for damages she also fail[ed] to act in a

timely fashion.

Officer[] Copple[] and Sgt. Jernigan place[d] me in

restraints after I was pepper sprayed injured in pain and

took me to a decontamination, a hot shower with my

clothes and the handcuffs still on I was in agony and

pain my right eye was cut laceration my lip was deeply

cut my top and bottom teeth were knock[ed] out during the

assault that [is] when I told Officer[] Copple I was

rape[d] sexually assaulted by inmate [M.L.], 5 hours

later I was taken to a hospital it was to[o] late to save

my teeth the officers pick[ed] up of[f] my cell floor

They took my wet clothes finally and told me a police

[officer] was going to talk with you. Note about the

rape and the assault later I spoke with L.T. Higgins from

Troy police who did a 30 minute investigation and later

charged me with false allegations and filing a false

report to police after going to court for the charge the

head District Attorney dismiss[ed] the charge but

[Defendants’ attorney] fail[ed] to enclose this

information in discovery but he chose to mention

incriminating statements about my pending charges biasly

[sic] to poison the minds of potential jurors my civil

and constitutional rights ha[ve] been clearly violated

I’ve suffered cruel and unusual punishment a[n] Eighth

Amendment violation pain and suffering through neglect

and deprivation while house[d] at Southern C.I. a hostile

living environment[.]

(Docket Entry 59 at 10-11; see generally id. at 9-12 (“Plaintiff’s

Declaration”).)

Plaintiff also submitted, inter alia, prison disciplinary

records related to the incident on November 15, 2019. (See Docket

Entry 59-4 at 1 to 5.) These records reflect that inmate M.L.

pleaded guilty to charges of disobeying an order from prison staff

and “fight[ing] or engag[ing] in a mutual physical confrontation

. . . resulting in outside medical attention” (id. at 5). (See id.

at 4-5.)6 The records further reflect that, although an

investigation found grounds to lodge the same charges against

6 In his post-incident witness statement, M.L. reported:

I was sitting in the Block watching TV when

[Plaintiff] came in the Block. He went to his room then

came out and grabbed the broom and swept his room. Then

he came out and looked at me and said I will kill you.

I looked back to see who he was talking to when he said

you nigger. He then walked to his room. I got up and

walked to his room and said who you talking to old

school. He said do it look like I’m talking to you. I

said man why ever you mad I don’t have nothing to do with

that. He stated man I can’t hear you come in the room.

As soon as I walked in the room he made a step towards me

and I felt uneasy so I pushed the door back open. Then

he grabbed me and was pinning me up against the wall like

he wanted to fight me then I struck him and we began to

fight. The fight proceeded out of the room then back

into the room the[n] the officers sprayed us.

(Docket Entry 52-1 at 31; see also id. at 12-13 (providing similar

account and clarifying that Plaintiff told M.L. to “step in the

room and close the door I cannot really hear what you are

saying”).)

Plaintiff, prison officials subsequently “dismissed [Plaintiff’s

case] due to a time frame violation” (id. at 3). (See id. at 1-3.)

Finally, Defendants submitted the surveillance video from

Plaintiff’s cellblock on November 15, 2019. (See Docket Entries

53, 53-1, 56.) As relevant here, the surveillance video reflects:

At 8:24 a.m., inmates, including M.L., sit and/or stand around

tables in the middle of the bottom tier7 of a two-level cellblock

watching a television affixed to the upper portion of a column in

the center foreground of the video. A broom, a dustpan, and a mop

rest at or near the base of that column, on the side between the

column and the cellblock entrance door, a portion of which appears

at the lower left corner of the video frame. A trashcan rests at

the base of the column, under the television, on the side facing

the inmates watching the television. Just inside the cellblock

entrance, an inmate talks on the telephone in the lower left corner

of the video frame, near the bathrooms that comprise the left wall

of the cellblock. Some cellblock doors stand open (ranging from

slightly ajar to fully open)8 while other doors remain closed.

7 The area contains three tables, one in front of a column

against which M.L. leans when Plaintiff enters the cellblock and

two tables behind that column; inmates only occupy the area around

the two tables on either side of the column when the video

commences.

8 The doors operate on hinges, opening outward into the

cellblock, with a range of approximately 180 degrees.

At 8:24:47, inmates start appearing at the bottom left of the

video frame, entering through the partially visible cellblock

entrance. Plaintiff enters the frame at 8:24:48 and walks directly

to the first cell on the back wall beside the lower tier bathroom.

He pulls open the door and steps into the cell before immediately

turning around and exiting the cell to walk into the bathroom,

leaving his cell door wide open. During Plaintiff’s time in the

bathroom, M.L. sits in the chair immediately in front of the column

against which he had been leaning. At 8:25:27, Plaintiff walks out

of the bathroom and goes directly to the table behind the one where

M.L. sits, pausing momentarily before he turns around and walks

directly to the front column, where he grabs the broom and, at

8:25:49, walks back into his cell, the door of which remains open.9

As he enters the cell, Plaintiff pulls the door almost shut behind

him, but it swings back slightly ajar. At 8:26:40, Plaintiff

pushes the door open (to more than a 90-degree angle) before he

sweeps debris out of his cell.

At 8:26:50, as he pushes the broom back to the column from

which he took it, Plaintiff stares in the direction of the tables

where the inmates sit watching television. He continues to look in

that direction as he approaches the column before he grabs the

broom and starts walking back towards his cell, still looking

9 Plaintiff originally opened the door nearly 180 degrees,

but during his absence, it slowly started closing, coming to a rest

at slightly less than a 90-degree angle.

towards the inmates watching television, before he again changes

direction and takes the broom back to the column while continuing

to look towards those inmates.10 At 8:26:57, Plaintiff places the

broom against the column and turns back towards his cell, as M.L.

looks over his shoulder in the direction of an inmate leaning

against the railing in the upper tier. At 8:27:02, Plaintiff

reaches his cell and pushes the door open wider as he continues to

look in the direction of the sitting inmates. Although a pipe

partially obscures the view, it appears that Plaintiff says

something towards those inmates before he walks into his cell at

8:27:03, pushing the door open even farther, to nearly 180 degrees.

Two seconds later, Plaintiff steps back out of his cell,

turning in the direction of the watching inmates, nodding and

saying something in their direction. As this occurs, Plaintiff’s

door starts to swing back towards him, but at 8:27:09, Plaintiff

pushes the door open to approximately 180 degrees again.

Concurrently, M.L. twists around in his chair to look behind him

before glancing back at Plaintiff as Plaintiff starts walking back

into his cell at 8:27:11. Although a wall largely obscures the

view, it appears that Plaintiff turns around and sits down on the

bed in his cell, facing in the direction of M.L., who remains

seated at the table. The video does not clearly reveal whether

10 The video does not clearly indicate whether or not

Plaintiff says something to those inmates.

Plaintiff maintains a line of sight on M.L. through the open cell

door, which starts slowly swinging closed.

Regardless, at 8:27:17, one second after Plaintiff appears to

finish sitting down, M.L. starts to get up from the table. M.L.

walks directly to Plaintiff’s cell, the door of which remains open

nearly 90 degrees. At 8:27:25, M.L. steps around the open door

and, by 8:27:27, steps into the cell threshold. At 8:27:28,

Plaintiff stands in his cell facing M.L., moving closer to M.L. by

8:27:29. The two stand face-to-face for a few seconds, apparently

engaged in a verbal exchange, before M.L. at 8:27:34 turns to pull

the cell door closed. The cell door closes at 8:27:36 before

immediately popping back open (at 8:27:37) revealing (at 8:27:38)

M.L. stepping backwards through the doorway away from Plaintiff.

By 8:27:39, Plaintiff and M.L. commence exchanging blows and, by

8:27:46, although he and Plaintiff maintain their grasp on each

other, M.L. has pivoted and forced Plaintiff out of the cell, while

M.L. remains inside it.

At 8:27:47, M.L. frees his arm and punches Plaintiff, at which

point the two inmates break apart, with Plaintiff outside his cell

and M.L. inside the cell. Gesturing, Plaintiff advances on the

doorway to his cell and stands in the threshold for a few seconds

while M.L. remains a few feet inside the cell, with neither inmate

touching the other. At 8:27:53, Plaintiff and M.L. resume their

physical altercation, with Plaintiff in the cell threshold. At

8:27:59, they move into the cellblock, still hitting each other.

They continue fighting outside Plaintiff’s cell until, at 8:28:11,

the first prison official, Officer Armstrong (see Docket Entry 52-1

at 17), enters the bottom of the video frame. As Officer Armstrong

heads towards them, Plaintiff and M.L. reenter Plaintiff’s cell,

still fighting.

By 8:28:15, Plaintiff, M.L., and Officer Armstrong have all

entered Plaintiff’s cell. Plaintiff and M.L. continue fighting on

or near Plaintiff’s bed as, at 8:28:29, other officers start

entering Plaintiff’s cell. By 8:28:30, Sergeant Jernigan stands at

Plaintiff’s cell’s threshold, which he fully enters shortly

thereafter as Plaintiff and M.L. continue to fight, and by 8:28:42,

Sergeant Jernigan, Plaintiff, and M.L. have moved out of sight

inside Plaintiff’s cell. At this point, the cell contains three

officers (Officer Armstrong, Officer Willoughby, and Sergeant

Jernigan), with multiple additional officers gathered outside the

cell. At 8:28:49, Officer Armstrong exits the cell, with his shirt

covering his nose; as he starts towards the cellblock exit, he

looks downwards with his hand cupped near his mouth. By 8:29:03,

Sergeant Jernigan starts walking towards the cell door with

Plaintiff. At 8:29:06, Plaintiff walks through his cell door with

his hands behind his back, and Sergeant Jernigan escorts him

through the cellblock doorway and out of the video at 8:29:13.

Sergeant Jernigan returns to the cellblock seven seconds later and

walks back into Plaintiff’s cell. Sergeant Jernigan escorts M.L.

out of Plaintiff’s cell at 8:29:45 and out of the cellblock at

8:29:51. The other officers start following Sergeant Jernigan and

M.L. out of the cellblock, with one officer closing Plaintiff’s

cell door as she departs. In the approximately two minutes that

elapsed from the start of Plaintiff and M.L.’s physical altercation

to M.L.’s departure from Plaintiff’s cell, at least sixteen prison

officials entered the cellblock. Notably, Plaintiff and M.L.

remain fully clothed in all of their on-screen interactions and

during their escort from the cellblock.

Finally, the parties submitted copies of paperwork related to

various grievances that Plaintiff filed in the fall of 2019. (See

Docket Entry 52-1 at 85 to 93; Docket Entry 59-3 at 2 to 14.)

Plaintiff pursued two grievances related to the incident on

November 15, 2019, through “Step Three” of the NCDPS Administrative

Remedy Procedure (at times, the “ARP”). (See Docket Entry 52-1 at

85 to 93.) In these grievances, he maintains, as relevant here,

that (i) staff unlocked his cell door and failed to protect him

from M.L. and (ii) he did not receive medical attention in a

sufficiently “timely fashion to save [his] teeth” (id. at 91).

(See id. at 86, 91.) Plaintiff also submitted a “Screening

Response” dated September 27, 2019, “Regarding Grievance No.: 4860-

2019-KPODF-11801,” which states that the grievance “has been

accepted and will begin a review process,” with a response “sent

within 15 calendar days of 09/27/2019,” as well as a “Screening

Response” dated September 30, 2019, “Regarding Grievance No.: 4860-

2019-KPODF-11817.” (Docket Entry 59-3 at 11 to 12 (emphasis

omitted).) The latter response states:

The grievance you have submitted is being rejected for

the following reason:

- Active Grievance in Process

Rejection Justification:

The Administrative Remedy Procedure, Section .0300 of the

North Carolina Department of Public Safety Prisons Policy

and Procedures, provides:

.0304 Submission of Grievances

(b) An inmate may submit a new grievance after a pending

grievance has completed Step 2 review or has been

resolved.

(Id. at 12 (formatting in original).) Notably, both responses

identify Plaintiff’s location as Scotland Correctional Institution

rather than Southern Correctional Institution. (See id. at 11-12.)

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

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)),

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).

Ordinarily, “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, “[wlhen 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 (Ath 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”). As the United States Court of Appeals for the Fourth

Circuit explained, in Scott,

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 Fourth Circuit] ha[s] clarified, Scott is

the exception, not the rule. . . . 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[ v. West Va. State Police, Troop 2,] 633

F.3d [272,] 277 [(4th Cir. 2011)] (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) (parallel

citations omitted).

B. Eighth Amendment Standards

As long recognized, “[t]he Eighth Amendment protects prisoners

from ‘unnecessary and wanton infliction of pain.’” Thompson v.

Commonwealth of Va., 878 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)).

i. Failure to Protect Claims

As the Supreme Court has observed, prisons both house “persons

[with] demonstrated proclivit[ies] for antisocial criminal, and

often violent, conduct” and “strip[]” inmates “of virtually every

means of self-protection.” Farmer v. Brennan, 511 U.S. 825, 833

(1994) (certain brackets in original) (internal quotation marks

omitted). Accordingly, “the government and its officials are not

free to let the state of nature take its course.” Id. “Prison

conditions may be ‘restrictive and even harsh,’ but gratuitously

allowing the beating or rape of one prisoner by another serves no

‘legitimate penological objective,’ any more than it squares with

‘evolving standards of decency.’” Id. (brackets, citations, and

certain internal quotation marks omitted). “Being violently

assaulted in prison is simply not ‘part of the penalty that

criminal offenders pay for their offenses against society.’” Id.

at 834.

Thus, prison officials must take reasonable measures to

guarantee inmate safety. “In particular, . . . prison officials

have a duty . . . to protect prisoners from violence at the hands

of other prisoners.” Id. at 833 (second ellipsis in original)

(internal quotation marks omitted). “It is not, however, every

injury suffered by one prisoner at the hands of another that

translates into constitutional liability for prison officials

responsible for the victim’s safety.” Id. at 834. Instead, “a

prison official violates the Eighth Amendment only when two

requirements are met. First, the deprivation alleged must be,

objectively, ‘sufficiently serious[;]’ a prison official’s act or

omission must result in the denial of ‘the minimal civilized

measure of life’s necessities.’” Id. (citations omitted). “For a

claim (like the one here) based on a failure to prevent harm, the

inmate must show that he is incarcerated under conditions posing a

substantial risk of serious harm.” Id.

Second, the prison official must possess a “‘sufficiently

culpable state of mind.’” Id. “In prison-conditions cases that

state of mind is one of ‘deliberate indifference’ to inmate health

or safety.” Id. “[D]leliberate indifference entails something more

than mere negligence,” but “something less than acts or omissions

for the very purpose of causing harm or with knowledge that harm

will result.” Id. at 835; see also id. (explaining “that Eighth

Amendment liability requires ‘more than ordinary lack of due care

for the prisoner’s interests or safety’”). “The [Supreme] Court

[has] held that deliberate indifference in this context lies

somewhere between negligence and purpose or knowledge: namely,

recklessness of the subjective type used in criminal law.” Brice

v. Virginia Beach Corr. Ctr., 58 F.3d 101, 105 (4th Cir. 1995); see

also id. at 105 n.2 (contrasting “‘civil-law’ recklessness, under

which a person is judged reckless if he acts in disregard of an

unjustifiably great risk of harm of which he knew or should have

known”).

ii. Excessive Force Claims

However, “application of the deliberate indifference standard

is inappropriate in one class of prison cases: when officials

stand accused of using excessive physical force.” Farmer, 511 U.S.

at 835 (internal quotation marks omitted). “In such situations,

where the decisions of prison officials are typically made in

haste, under pressure, and frequently without the luxury of a

second chance, an Eighth Amendment claimant must show more than

‘indifference,’ deliberate or otherwise.” Id. (citation and

certain internal quotation marks omitted). Rather, “[t]he claimant

must show that officials applied force ‘maliciously and

sadistically for the very purpose of causing harm . . . .’” Id.

Thus, 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.’” Thompson, 878 F.3d 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. 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

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 (Ath Cir. 2021) (emphasis in

original) (citation omitted) .1!

11 Nevertheless, “the extent of injury may supply insight as

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

Cir. 2016).

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);

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.”

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.

iii. Medical Deliberate Indifference Claims

In turn, to establish a constitutional claim regarding medical

care, an inmate must show that a prison official “acted with

‘deliberate indifference’ (subjective) to [his] ‘serious medical

needs’ (objective).” Iko, 535 F.3d at 241 (citing Estelle, 429

U.S. at 104). A medical need qualifies as serious if it “has been

diagnosed by a physician as mandating treatment or . . . is so

obvious that even a lay person would easily recognize the necessity

for a doctor’s attention.” Id. (internal quotation marks omitted).

A defendant displays deliberate indifference where he possesses

knowledge of the risk of harm to an inmate and knows that “his

actions were insufficient to mitigate the risk of harm to the

inmate arising from his medical needs.” Id. (emphasis and internal

quotation marks omitted); see also Scinto v. Stansberry, 841 F.3d

219, 225 (4th Cir. 2016) (“To prove deliberate indifference,

plaintiffs must show that ‘the official kn[ew] of and disregard[ed]

an excessive risk to inmate health or safety.’” (brackets in

original) (quoting Farmer, 511 U.S. at 837)).

As noted, “deliberate indifference entails something more than

mere negligence, . . . [but] is satisfied by something less than

acts or omissions for the very purpose of causing harm or with

knowledge that harm will result.” Farmer, 511 U.S. at 835. “It

requires that a [defendant] actually know of and disregard an

objectively serious condition, medical need, or risk of harm.”

De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (internal

quotation marks omitted). A plaintiff can satisfy this standard by

showing “that a [defendant] knew of a substantial risk from the

very fact that the risk was obvious.” Scinto, 841 F.3d at 226

(internal quotation marks omitted). In addition, “‘[f]ailure to

respond to an inmate’s known medical needs raises an inference [of]

deliberate indifference to those needs.’” Id. (brackets in

original) (quoting Miltier v. Beorn, 896 F.2d 848, 853 (4th Cir.

1990), overruled in part on other grounds by Farmer, 511 U.S. at

837).

C. Exhaustion Requirement

Finally, as Plaintiff initiated this action while an NCDPS

inmate (see, e.g., Docket Entry 1 at 2), the Prison Litigation

Reform Act (the “PLRA”) applies. Under the PLRA, “[n]o action

shall be brought with respect to prison conditions under section

1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until

such administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). Exhaustion “is mandatory” and courts lack

discretion to waive the exhaustion requirement. Woodford v. Ngo,

548 U.S. 81, 85 (2006). Moreover, the “exhaustion requirement

applies to all inmate suits about prison life, whether they involve

general circumstances or particular episodes, and whether they

allege excessive force or some other wrong.” Porter v. Nussle, 534

U.S. 516, 532 (2002). The defendant bears the burden of

establishing that a prisoner failed to exhaust administrative

remedies. See Jones v. Bock, 549 U.S. 199, 216 (2007) (“We

conclude that failure to exhaust is an affirmative defense under

the PLRA, and that inmates are not required to specially plead or

demonstrate exhaustion in their complaints.”).

Nevertheless, the “exhaustion of administrative remedies under

the PLRA is a question of law to be determined by the judge.”

Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010); see also

Woodhouse v. Duncan, 741 F. App’x 177, 178 (4th Cir. 2018)

(“*‘[J]udges may resolve factual disputes relevant to the exhaustion

issue without the participation of a jury.’” (quoting Small v.

Camden Cnty., 728 F.3d 265, 271 (3d Cir. 2013)) (brackets in

original)); Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015)

(“[A]1ll . . . of the circuits that have considered the issue agree

that judges may resolve factual disputes relevant to the exhaustion

issue without the participation of a jury.” (internal quotation

marks omitted)). A prisoner satisfies the PLRA exhaustion

requirement when he “hal[s] utilized all available remedies ‘in

accordance with the applicable procedural rules,’ so that prison

officials have been given an opportunity to address the claims

administratively.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir.

2008) (quoting Woodford, 548 U.S. at 88). Thus, the relevant

prison’s grievance procedures determine the steps that a prisoner

must take to meet his exhaustion obligations. See id. at 726.

Moreover, prisoners must exhaust their administrative remedies

even if the administrative process does not offer the type of

relief that they seek, such as monetary damages. See Booth v.

Churner, 532 U.S. 731, 736-41 (2001). However, “an administrative

remedy is not considered to have been available if a prisoner,

through no fault of his own, was prevented from availing himself of

it.” Moore, 517 F.3d at 725. In this regard, the Supreme Court

has identified three circumstances wherein an administrative remedy

qualifies as unavailable: (i) “it operates as a simple dead end —

with officers unable or consistently unwilling to provide any

relief to aggrieved inmates”; (ii) it remains “so opaque that it

becomes, practically speaking, incapable of use”; or (iii) “prison

administrators thwart inmates from taking advantage of a grievance

process through machination, misrepresentation, or intimidation.”

Ross v. Blake, 578 U.S. 632, 643-44 (2016). “The burden of showing

that administrative remedies were unavailable lies with the

plaintiff.” Mann v. Scott, Civil Action No. 0:14-3474, 2015 WL

5165198, at *4 (D.S.C. Sept. 1, 2015) (citing Graham v. Gentry, 413

F. App’x 660, 663 (4th Cir. 2011)); see also Graham, 413 F. App’x

at 663 (“[I]n order to show that a grievance procedure was not

‘available,’ a prisoner must adduce facts showing that he was

prevented, through no fault of his own, from availing himself of

that procedure.”).

II. Analysis

A. Officer Copple

As a preliminary matter, Defendants assert that “Plaintiff

failed to exhaust his administrative remedies regarding Officer

Copple allegedly applying restraints too tightly.” (Docket Entry

52 at 21 (emphasis omitted).) Plaintiff maintains that he

“exhausted [his] grievances [to] step three” for grievances “#12692

[and] #12694” in which he “stated [that M.L.] assaulted and rape[d

him] in his cell on [November 15,] 2019.” (Docket Entry 59 at 7.)

Plaintiff further asserts: “[He] was seen by medical for the

bruises caused by [his] handcuffs and leg iron be[ing] applied too

tightly by Officer Copple but a grievance was filed but la[t]er

rejected by prison staff because you can only file one grievance at

a time.” (Id.)

NCDPS provides a three-level Administrative Remedy Procedure.

(See Docket Entry 52-1 at 119 to 129.) Under the ARP, “[a]n inmate

may submit a new grievance after a pending grievance has completed

Step 2 review or has been resolved.” (Id. at 121 (“Section

.0304(b)”).) If an inmate submits a grievance in violation of this

provision, “the screening officer may return the grievance to the

inmate with written notification on the [grievance form] that it

may be resubmitted when the current grievance in process completes

Step 2.” (Id. at 126.) Notwithstanding this policy, “[n]o inmate

grievance alleging sexual abuse or harassment shall be rejected.”

(Id. at 121.)

Here, Plaintiff pursued two grievances related to the incident

on November 15, 2019, through Step Three of the ARP. (See, e.g.,

id. at 85-93.) These grievances do not mention Officer Copple’s

alleged too-tight application of restraints; indeed, although they

mention negligence, deliberate indifference, “cruel and unusual

punishment,” and “the Due Process Clause of the Fourteenth

Amendment” (id. at 91), they lack any reference to restraints or

excessive force. (See id. at 86, 91.) As such, these grievances

do not “alert the prison to the nature of the wrong for which

[Plaintiff seeks] redress” through his excessive force claim

against Officer Copple and thus do not satisfy the administrative

exhaustion requirement for that claim. Wilcox v. Brown, 877 F.3d

161, 167 n.4 (4th Cir. 2017) (brackets and internal quotation marks

omitted).

Plaintiff does not contend otherwise; instead, he maintains

that he submitted a grievance about Officer Copple’s alleged

actions, but that NCDPS staff rejected that grievance because he

had another then-pending grievance. (See Docket Entry 59 at 7

(explaining that prison staff rejected relevant grievance “because

you can only file one grievance at a time”).) In support of this

assertion, Plaintiff submitted the screening responses to Grievance

Numbers 4860-2019-KPODF-11801 and 4860-2019-KPODF-11817. (See

Docket Entry 59-3 at 11 to 12.) Notably, the referenced responses

predate both the incident on November 15, 2019, and Plaintiff’s

incarceration at Southern Correctional Institution; thus, they

provide no support for Plaintiff’s (unsworn) assertion that he

attempted to grieve Officer Copple’s alleged use of excessive force

at Southern Correctional Institution in November 2019. (See id.

(bearing dates received of September 25, 2019, and September 30,

2019, and identifying Plaintiff’s location as “Scotland CI”

(emphasis omitted)).) In any event, NCDPS’s rejection of a

grievance under Section .0304(b) neither satisfies the exhaustion

requirement nor, in and of itself, renders the administrative

review process “unavailable” to an inmate. See, e.g., Moore, 517

F.3d at 729-30 (explaining that, where NCDPS staff returned the

plaintiff’s “gout grievance . . . because it was submitted while

his Hepatitis C grievance, filed 12 days earlier, was still

pending,” in violation of the ARP’s one-pending-grievance rule,

that grievance “did not serve to exhaust [the plaintiff’s]

remedies,” and holding that, “[b]ecause [the plaintiff] had no

excuse for not resubmitting the [gout] grievance on or after June

5, 2003, when Step 2 of his Hepatitis C grievance was completed,

the district court properly concluded that [the plaintiff] failed

to exhaust his available remedies regarding his gout claim”).

The record thus establishes that Plaintiff failed to exhaust

his administrative remedies on his excessive force claim against

Officer Copple. Accordingly, the Court should dismiss this claim

without prejudice for failure to exhaust administrative remedies.12

12 Notably, even assuming the veracity of Plaintiff’s

asserted attempt to submit a grievance regarding Officer Copple’s

allegedly too-tight restraints, the record lacks any indication

that Plaintiff could not timely resubmit such grievance after the

(continued...)

B. Officer Smith

Next, Plaintiff contends that Officer Smith violated his

rights by (i) “fail[ing] to act or respond in a timely fashion”

after “witness[ing M.L.] enter [Plaintiff’s] cell per policy a[n]

unauthorized sleeping area” (Docket Entry 59 at 1) and

(ii) “open[ing Plaintiff’s] cell door [and] in doing so allow[ing

him] to be assaulted” (id. at 3). Conversely, Defendants contend

that the record establishes Officer Smith’s lack of “personal

involvement in the fight between Plaintiff and [M.L.],” save for

promptly “call[ing] for assistance after seeing [Plaintiff and

M.L.’s fight] spill out into the dayroom.” (Docket Entry 52 at 11;

12(...continued)

prior grievance cleared Step Two, rendering this case

distinguishable from the Fourth Circuit’s recent decision in

Griffin v. Bryant, No. 21-7362, __ F.4th __, 2022 WL 17957455 (4th

Cir. Dec. 27, 2022). See, e.g., id. at *7 (reversing grant of

summary judgment for failure to exhaust administrative remedies on

“sedation” grievance, explaining that “an abundance of loose ends

feed into the question of whether administrative remedies were

functionally available to [the plaintiff]” regarding that

grievance, including why his initial “Kosher diet grievance [was]

left to languish in the system after it had been favorably resolved

almost immediately,” why officials “accept[ed] and respond[ed] to

[his post-sedation-grievance] inadequate care grievance, in plain

contravention of their ‘one-grievance-at-a-time’ policy,” and why

“the apparently moot Kosher diet grievance [was] suddenly forwarded

to ‘Step 2’ in February 2016, just days before the supposed filing

deadline for the sedation grievance,” and concluding that although

“[t]he facts of record present the actual possibility that [the

plaintiff] faced ‘a real world “Catch 22,” a dilemma from which

there is no escape, one in which the only solution is denied by a

circumstance inherent in the problem[,]’ . . . the record leaves

too much to speculation for [the Fourth Circuit] to now decide that

[the plaintiff’s] failure to exhaust the grievance procedure’s

remedies should be excused because those remedies were not, in

truth, ‘available’ to him”).

see also id. at 10-13; Docket Entry 61 at 4-5.) Defendants’

position should prevail.

Put simply, the surveillance video establishes that Plaintiff,

not Officer Smith, opened his cell door to permit M.L.’s entrance.

(See Video at 8:24:48-8:27:36.) Moreover, Plaintiff’s Declaration

lacks any indication that his assertion that Officer Smith

“fail[ed] to act in a timely fashion” (Docket Entry 59 at 10; cf.

Docket Entry 52-2, ¶ 3 (Officer Smith averring that she called for

assistance when she “noticed a fight between [M.L.] and

[Plaintiff]” as she “was working in the Control Booth for the

Falkland Unit”)) “is based on any personal knowledge by [Plaintiff]

of [Officer Smith’s actions in response to Plaintiff and M.L.’s

altercation]. As a result, [the Court is] unable to accept th[ose]

allegation[s] as probative evidence.” Williamson v. Stirling, 912

F.3d 154, 172 (4th Cir. 2018). In any event, the surveillance

video reveals that a mere thirty-two seconds elapse between the

start of Plaintiff and M.L.’s physical altercation and the entry of

the first prison official into their cellblock, and, indeed, less

than a minute elapses between the time that M.L. (calmly) stands up

from the table to approach Plaintiff’s cell and the entry of that

official. (See Video at 8:27:17-8:28:11.) As such, the record

fatally undermines Plaintiff’s contention that Officer Smith acted

with deliberate indifference to Plaintiff’s safety on November 15,

2019. The Court should thus grant summary judgment in Officer

Smith’s favor.

C. Sergeant Jernigan

As an initial matter, it remains unclear whether Plaintiff

seeks to assert a deliberate indifference or an excessive force

claim against Sergeant Jernigan for his alleged post-altercation

actions. For instance, Plaintiff’s Declaration states:

Officer[] Copple[] and Sgt. Jernigan place[d] me in

restraints after I was pepper sprayed injured in pain and

took me to a decontamination, a hot shower with my

clothes and the handcuffs still on I was in agony and

pain my right eye was cut laceration my lip was deeply

cut my top and bottom teeth were knock[ed] out during the

assault that [is] when I told Officer[] Copple I was

rape[d] sexually assaulted by inmate [M.L.], 5 hours

later I was taken to a hospital it was to[o] late to save

my teeth the officers pick[ed] up of[f] my cell floor

They took my wet clothes finally and told me a police

[officer] was going to talk with you.

(Docket Entry 59 at 11.)

In his briefing, however, Plaintiff argues, inter alia:

It took Southern Correctional Staff 5 hours to get

[Plaintiff] to a hospital as a result of this [Plaintiff]

lost three of his teeth that were knock[ed] out in his

cell by [M.L.] Staff Sgt. Jernigan Officer[] Copple are

legally liable by negligent breaching the duty of care

and failure to shield and protect while in the custody of

the D.P.S. [Plaintiff] was place[d] in a hot shower with

his clothes still on as part of the decontamination

process by Sgt. Jernigan, and Officer[] Copple This cruel

and unusual punishment a[n] Eighth Amendment violation

[Plaintiff] suffered agony and pain as a result of staff

actions This can be proven at a jury trial in favor of

the non[-]moving party as legal evidence This cruel deed

is more than mere allegations Being place[d] in a hot

shower after being injured through a violent assault and

rape [Plaintiff] suffered both mentally and physically

through deprivation and neglect . . . .

(Id. at 8.)

Regardless of whether Plaintiff asserts an excessive force or

a deliberate indifference claim against Sergeant Jernigan for his

post-altercation actions, however, such claim fails. To the extent

Plaintiff seeks to hold Sergeant Jernigan liable for the purported

five-hour delay in providing (outside) medical treatment, Plaintiff

provides no evidence that Sergeant Jernigan bears responsibility

for that delay. Instead, Plaintiff avers only that, after

reporting the alleged rape to Officer Copple during the post-

altercation decontamination, “5 hours later [Plaintiff] was taken

to a hospital.” (Id. at 11.) Plaintiff does not identify the

individual(s) responsible for this five-hour delay. (See id.)

Rather, he generically argues that “[i]t took Southern Correctional

staff 5 hours to get [Plaintiff] to a hospital,” resulting in the

“los[s of] three of [Plaintiff’s] teeth that were knock[ed] out in

his cell by inmate [M.L.].” (Id. at 8 (emphasis added).)

Conversely, Plaintiff specifically contends that he “was place[d]

in a hot shower with his clothes still on as part of the

decontamination process by Sgt. Jernigan[] and Officer[] Copple,”

which he describes as “cruel and unusual punishment.” (Id.

(emphasis added).)

For his part, Sergeant Jernigan avers that, after the fight

between Plaintiff and M.L., “[t]he medical department was promptly

notified that both offenders needed a medical evaluation.” (Docket

Entry 55-1, ¶ 4; accord id., ¶ 6 (“After the fight ended, the

medical department was promptly notified that both offenders needed

to be medically evaluated” even though “[n]either offender looked

seriously injured beyond the typical injuries associated with a

fight (bumps, bruises, scrapes), except that [Plaintiff] was

missing some teeth.”).) Sergeant Jernigan further avers that, upon

Plaintiff informing him of the alleged rape during the post-

altercation decontamination process, Sergeant Jernigan “immediately

notified the Officer-in-Charge, Lt. Goodwin and medical about the

allegations.” (Id., ¶ 4.)

“Section 1983 authorizes a plaintiff to sue for an alleged

deprivation of a federal constitutional right by an official acting

under color of state law.” Williamson, 912 F.3d at 171 (internal

quotation marks omitted). “To establish personal liability under

§ 1983, however, the plaintiff must affirmatively show that the

official charged acted personally in the deprivation of the

plaintiff’s rights. That is, the official’s own individual actions

must have violated the Constitution.” Id. (brackets, citation, and

internal quotation marks omitted). “Importantly, mere knowledge of

such a deprivation does not suffice.” Id.

Because the evidence, even construed in Plaintiff’s favor,

remains “insufficient to show that [Sergeant Jernigan] was

personally involved in any” delay in providing (outside) medical

treatment to Plaintiff, “no reasonable trier of fact could find

that [Sergeant Jernigan’s] ‘own individual actions’ violated the

Constitution.” Id. at 172. “Accordingly, [Sergeant Jernigan is]

entitled to summary judgment on [any medical deliberate

indifference claim] because [he] lacked sufficient personal

involvement in the alleged constitutional deprivation[.]” Id.

Further, to the extent Plaintiff pursues an excessive force

claim against Sergeant Jernigan for his post-altercation actions,

it falters under qualified immunity. (See generally Docket Entry

52 at 28-29 (arguing for summary judgment based on qualified

immunity).) “The doctrine of qualified immunity protects

government officials from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

quotation marks omitted). “The protection extends to all but the

plainly incompetent or those who knowingly violate the law.” Raub

v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015) (internal quotation

marks omitted). Under this doctrine, “[o]fficials are not liable

for bad guesses in gray areas; they are liable for transgressing

bright lines.” Id. (brackets in original) (internal quotation

marks omitted).

In evaluating qualified immunity, courts consider “(1) whether

the plaintiff has established the violation of a constitutional

right, and (2) whether that right was clearly established at the

time of the alleged violation.” Id. The Court may address these

prongs in whatever order “will best facilitate the fair and

efficient disposition of [this] case.” Pearson, 555 U.S. at 242.

Here, consideration of the latter prong first appears appropriate.

See id. at 237 (recognizing potential propriety of initial

consideration of latter prong for “cases in which it is plain that

a constitutional right is not clearly established but far from

obvious whether in fact there is such a right”).

A right qualifies as “clearly established” if “it would be

clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202

(2001), overruled in part on other grounds by Pearson, 555 U.S. at

227. In other words, “[t]he unlawfulness of the action must be

apparent when assessed from the perspective of an objectively

reasonable official charged with knowledge of established law.”

Lopez v. Robinson, 914 F.2d 486, 489 (4th Cir. 1990). “This is not

to say that an official action is protected by qualified immunity

unless the very action in question has previously been held

unlawful, but it is to say that in the light of pre-existing law

the unlawfulness must be apparent.” Anderson v. Creighton, 483

U.S. 635, 640 (1987) (citation omitted). In ascertaining whether

a right qualified as clearly established at the time of the

challenged conduct, courts within this circuit generally “need not

look beyond the decisions of the Supreme Court, th[e Fourth

Circuit], and the highest court of the state in which the case

arose.” Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir.

1999) (internal quotation marks omitted). However, in the absence

of controlling precedent, a right may qualify as clearly

established (i) if it appears “manifestly included within more

general applications of the core constitutional principles invoked”

or (ii) based on “a consensus of cases of persuasive authority from

other jurisdictions.” Booker v. South Carolina Dep’t of Corr., 855

F.3d 533, 538-39 (4th Cir. 2017) (emphasis and internal quotation

marks omitted). Conversely, decisions from other jurisdictions

that decline to find constitutional violations in similar

circumstances can justify application of qualified immunity, in the

absence of controlling authority. See Pearson, 555 U.S. at 244-45.

As of November 2019, appellate courts, including the Fourth

Circuit, had repeatedly held that a prison official could violate

the Eighth Amendment by refusing to permit an inmate to wash after

pepper spraying. See, e.g., Williams v. Benjamin, 77 F.3d 756, 765

(4th Cir. 1996) (reversing grant of summary judgment to guards who

“refused to wash off the mace or permit [the plaintiff] to wash

himself, informing him that he would not get a shower and that the

mace was ‘his problem’”); Walker v. Bowersox, 526 F.3d 1186, 1189

(8th Cir. 2008) (reversing grant of summary judgment to officer

where officer pepper sprayed inmate, who “was not allowed to shower

or have clean clothes or bedding for three days and could only wash

in his cell sink”); Norton v. City of Marietta, 432 F.3d 1145, 1154

(10th Cir. 2005) (“Whether defendants’ use of the spray was

objectively harmful enough to violate plaintiff’s Eighth Amendment

rights turns in part on how long plaintiff was sprayed and whether

he was adequately irrigated afterwards or left to suffer

unnecessarily.”); Foulk v. Charrier, 262 F.3d 687, 701-02 (8th Cir.

2001) (affirming jury verdict against officer who “sprayed pepper

spray directly into [inmate’s] face,” where inmate “received no

medical care and had no ability to wash off the pepper spray”); see

also Iko, 535 F.3d at 241 (“The district court denied the officers

qualified immunity on [the plaintiff’s deliberate indifference]

claim, noting that the officers’ training and existing case law at

the time required decontamination after the use of such an irritant

[(i.e., pepper spray)]. We agree.”). Under the circumstances, “it

would [not] be clear to a reasonable officer that [promptly placing

Plaintiff in a shower to decontaminate after officers pepper-

sprayed him] was unlawful.” Saucier, 533 U.S. at 202. Thus,

qualified immunity shields Sergeant Jernigan from Plaintiff’s post-

altercation excessive force claim. See id.

Finally, Plaintiff argues that, by pepper spraying him, “Sgt.

Jernigan . . . used excessive force when the unit manager, Mrs[.]

Harris[,] call[ed] a code 4 on Franklin Unit.” (Docket Entry 59 at

16.) More specifically, Plaintiff avers:

[When M.L.] tried to rape [him,] . . . [Plaintiff]

push[ed M.L.] away and quickly pull[ed] up [his] pants[,

but M.L.] struck [Plaintiff] in the mouth and knock[ed]

out [Plaintiff’s] teeth and cut [his] lip [and

Plaintiff’s] right eye was badly damaged[.] This was not

a fight in general [M.L.] tried to rape [Plaintiff].

When Sgt. Jernigan, and Sgt. Willoughby, was ordered to

pepper spray [Plaintiff] by the unit manager Mrs.

Harris[, M.L.] was on top of [Plaintiff] holding [him]

down on [his] cell bunk bed. Per policy[,] he was in

a[n] unauthorized cell[.]

(Id. at 10.)

As relevant to this contention, the video establishes that

Plaintiff and M.L. engaged in a mutual physical altercation that

moved between Plaintiff’s cell and the cellblock dayroom. They

remained engaged in this physical altercation when prison

officials, including Sergeant Jernigan, arrived on the scene.

Thirty-six seconds after Sergeant Jernigan arrived at Plaintiff’s

cell, he escorted a handcuffed Plaintiff through his cell door and

then out of the cellblock.

The uncontradicted evidence further establishes that:

Plaintiff and M.L. disregarded multiple orders to stop

fighting, prompting Unit Manager Harris’s order to “administer OC

Pepper Spray as a means of stopping the fight.” (Docket Entry 55-

1, ¶ 4.) Sergeant Jernigan “administered one one-second burst of

OC Pepper Spray and Sgt. Willoughby also administered OC Pepper

Spray.” (Id.) “After both offenders were sprayed with OC Pepper

Spray, they stopped fighting.” (Id.)13 Staff then handcuffed M.L.

and Plaintiff and took them “to restrictive housing to be

decontaminated.” (Id.) Sergeant Jernigan helped escort Plaintiff

“to a decontamination, a hot shower.” (Docket Entry 59 at 11; see

also Docket Entry 55-1, ¶ 4.) Additionally, “[t]he medical

department was promptly notified that both offenders needed a

medical evaluation.” (Docket Entry 55-1, ¶ 4.)

“[I]t is generally recognized that it is a violation of the

Eighth Amendment for prison officials to use mace, tear gas[,] or

other chemical agents in quantities greater than necessary or for

the sole purpose of infliction of pain.” Iko, 535 F.3d at 240

(internal quotation marks and emphasis omitted). Yet, pepper spray

“is not per se a cruel and unusual punishment,” McCargo v. Mister,

462 F. Supp. 813, 818 (D. Md. 1978), and officers can use it, in

limited quantities, “to control a recalcitrant inmate” without

violating the Eighth Amendment, Williams, 77 F.3d at 763 (internal

quotation marks omitted).

Here, construing the evidence in the light most favorable to

Plaintiff,

13 Plaintiff argues that, when he “was injured beaten

helpless with [M.L.] on top of [him], [he] was sprayed when [he]

pose[d] no threat to staff or inmate in [his] cell.” (Docket Entry

59 at 20.) However, as Plaintiff did not swear to its truthfulness

or otherwise make this contention under penalty of perjury, it does

not constitute admissible evidence for summary judgment purposes.

See Reeves, 2011 WL 4499099, at *5 n.14.

no reasonable jury could find that [Sergeant Jernigan’s]

use of force was applied maliciously and sadistically for

the very purpose of causing harm. As further explained

below, the factors articulated in Whitley weigh heavily

in [Sergeant Jernigan’s] favor: there was a need for

force, and in light of the perceived threat and [Sergeant

Jernigan’s] efforts to temper the force used, the force[]

used was proportional to the need for it. Taken as a

whole, analysis of the Whitley factors shows that

[Sergeant Jernigan] applied force in a good faith effort

to maintain or restore discipline. See[,] e.g., Kitchen

v. Ickes, 116 F. Supp. 3d 613, 628-29 (D. Md. 2015)

(finding that the officer’s “use of pepper spray [on

prisoner who failed to comply with orders to stop

fighting] was not excessive in relation to the need to

restore order and protect the inmates”), aff’d, 644 F.

App’x 243 (4th Cir. 2016); Hicks v. Simpkins, 2006 WL

2303179 (W.D. Va. Aug. 9, 2006) (finding no excessive

force where inmate was sprayed with pepper spray after

twice disobeying a direct order to return to his cell).

Geddings v. Roberts, No. 1:15cv264, 2018 WL 1626116, at *10

(M.D.N.C. Mar. 30, 2018) (final set of brackets in original)

(certain italicization added).

As for the first three Whitley factors, “the need for the

application of force,” “the relationship between the need and the

amount of force that was used,” and “the extent of any reasonably

perceived threat that the application of force was intended to

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

the record establishes that, at the time Sergeant Jernigan utilized

pepper spray, Plaintiff and another inmate remained engaged in a

physical altercation, which had previously spilled into a prison

dayroom containing multiple other unrestrained inmates.14 The

14 Although he asserts, in passing, that “[he] acted on in

(continued...)

record further reflects that, after verbal commands failed to halt

this ongoing fight, Sergeant Jernigan administered a single, one-

second burst of pepper spray. (See Docket Entry 55-1, 7 4.)

Finally, the record reveals that less than forty seconds elapse

between the time that Sergeant Jernigan arrives on the scene of the

fight until he escorts a handcuffed Plaintiff out of his cell.

“Violent and disruptive situations within a jail or

correctional setting — such as [P]llaintiff’s fight with [M.L.] —

present obvious threats to jail security.” Segura v. Cherno, No.

6:21-cv-740, 2022 WL 3587860, at *6 (D. Or. May 25, 2022), report

and recommendation adopted, No. 6:21-cv-740, 2022 WL 3586721 (D.

Or. Aug. 22, 2022); see also, e.g., Robison v. Testa, No.

1:20-cv-263, 2021 WL 5770211, at *4 (W.D. Pa. Dec. 6, 2021)

14(...continued)

[sic] self defense when [M.L.] violated his house, a cell” (Docket

Entry 59 at 19), Plaintiff does not clearly explain what he means

by his assertion that “[t]his was not a fight in general” (id. at

10 (maintaining, immediately thereafter, that “[M.L.] tried to rape

[Plaintiff]”)). (See id. at 1-22.) However, in his grievances

regarding the incident, Plaintiff asserts that “[t]his was not a

fight, or a mutual confrontation, but a sexual assault.” (Docket

Entry 52-1 at 91.) As an initial matter, the video establishes

that M.L. neither raped nor attempted to rape Plaintiff. In any

event, Plaintiff’s Declaration neither disputes that he physically

resisted M.L. nor provides any evidence indicating that Sergeant

Jernigan would have known that Plaintiff, for instance, merely

engaged in self-defense against an unprovoked attacker rather than

actively participated in a mutual fight with another inmate (see

Docket Entry 59 at 9-12). Significantly, though, “[i]n applying

the third Whitley factor, [the Court] must consider the extent of

any threat posed by [Plaintiff] to the staff or other inmates, as

reasonably perceived by [Sergeant Jernigan] based on the facts

known to him at the time.” Tedder v. Johnson, 527 F. App’x 269,

273 (4th Cir. 2013) (emphasis added).

(“[Inmates’] ongoing fight placed both men at risk of serious

injury. If allowed to continue, the altercation also could have

spread to the other inmates and detainees who were present in the

day room.”); Quinones v. Rollison, No. 18-cv-1170, 2020 WL 6420181,

at *4 (S.D.N.Y. Nov. 1, 2020) (observing that an inmate’s “violent

fight” with another inmate “posed a risk to other inmates, himself,

[the responding officer], and other prison staff” ). Moreover, the

evidence establishes that Plaintiff and M.L. refused multiple

orders to cease fighting. (See Docket Entry 55-1, ¶ 4.)

“Plaintiff’s undisputed refusal to comply with [those orders]

justified some need for force to restore order.” Geddings, 2018 WL

1626116, at *10 (explaining that “[c]ase law . . . support[s] that

‘[a] prisoner’s failure to comply with an officer’s order permits

the officer to use some measure of force to gain the prisoner’s

compliance or to respond to a threat that arises because of the

prisoner’s failure to comply’” (final set of brackets in

original)). Accordingly, the first three Whitley factors weigh in

Sergeant Jernigan’s favor. See id. at *10-11; see also, e.g.,

Robison, 2021 WL 5770211, at *4 (concluding that, where officer’s

“verbal commands proved inadequate to stop the violence, [his]

decision to escalate to the use of OC spray was objectively

reasonable,” such that “‘the relationship between the need for the

use of force and the amount of force used’” factor favored

officer); Kitchen, 116 F. Supp. 3d at 628 (finding that, where

inmates refused orders to stop fighting, officer’s “use of pepper

spray was not excessive in relation to the need to restore order

and protect the inmates who continued to fight,” and explaining

that, “[e]ven if [the p]laintiff had released his cellmate prior to

[the officer] deploying the pepper spray as [the p]laintiff claims,

and even if [the officer] deployed the entire can of pepper spray,

there is simply no evidence that in the brief interlude of the

altercation, viewed through the cell door slot, that [the officer]

was objectively aware that [the p]laintiff and his cellmate had

complied with the numerous orders to disengage and subjectively

perceived that the use of pepper spray in the amount deployed was

no longer necessary to restore order”).

The final factor, “any efforts made to temper the severity of

a forceful response,” Whitley, 475 U.S. at 321 (internal quotation

marks omitted), likewise favors Sergeant Jernigan. Here, officers

repeatedly ordered Plaintiff and M.L. to cease fighting, without

success, before Sergeant Jernigan deployed a single, one-second

burst of pepper spray. “[B]ecause a limited use of [pepper spray]

constitutes a relatively ‘mild’ response compared to other forms of

force, the initial application of [pepper spray] indicates a

‘tempered’ response by the prison officials,” Williams, 77 F.3d at

763, particularly given that officers resorted to pepper spray only

after Plaintiff and M.L. refused to comply with multiple orders to

cease fighting.

Under the circumstances, “no reasonable jury could find that

[Sergeant Jernigan’s] use of force was applied maliciously and

sadistically for the very purpose of causing harm.” Geddings, 2018

WL 1626116, at *10.15 The Court should therefore grant summary

judgment to Sergeant Jernigan on each of Plaintiff’s claims.

CONCLUSION

The record establishes that Officer Smith and Sergeant

Jerningan did not violate Plaintiff’s constitutional rights. In

addition, Plaintiff failed to exhaust his claims against Officer

Copple.

IT IS THEREFORE RECOMMENDED that Plaintiff’s Motion (Docket

Entry 58) be denied and Defendants’ Motion (Docket Entry 51) be

granted as follows: summary judgment should entered in favor of

Officer Smith and Sergeant Jernigan and Plaintiff’s claims against

Officer Copple should be dismissed without prejudice for failure to

exhaust administrative remedies.

This 9th day of January, 2023.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

15 Accordingly, the Court need not analyze whether Plaintiff

satisfies the objective component of an eighth-amendment excessive

force claim.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.