STEPHENS v. LEAKE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GEORGE CHRISTOPHER STEPHENS, )

)

Plaintiff, )

)

v. ) 1:22CV535

)

OFFICER DAWN LEAKE, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court upon Defendant Dawn Leak’s1 Motion for Summary

Judgment. (Docket Entry 22.) Plaintiff George Christopher Stephens did not file a response

to Defendant’s motion. For the reasons that follow, the undersigned will recommend that

Defendant’s Motion for Summary Judgment be granted.

I. BACKGROUND

Plaintiff, a pro se prisoner, filed this action alleging an excessive force claim against

Defendant surrounding an incident that occurred while he was housed at Scotland

Correctional Institution (hereinafter “Scotland”) on November 27, 2020. (See Compl., Docket

Entry 2 at 4-16.)2 More specifically, Plaintiff alleges that as a result of requesting additional

toilet paper from prison staff, Defendant brought Plaintiff some toilet paper while making her

1 While the record reflects different spellings, it appears Defendant’s name is “Dawn Leak.”

2 Unless otherwise noted, all citations in this recommendation to documents filed with the

Court refer to the page numbers located at the bottom right-hand corner of the documents as they

appear on CM/ECF.

rounds on that day. (Id. at 5.) Plaintiff asserts that Defendant was alone and prison procedures

require the opening of the wicket door be done in the presence of another officer. (Id. at 5,

16.) Therefore, Plaintiff anticipated that Defendant would place the toilet paper in an external

box connected to his cell. (Id. at 16.) During this time, Plaintiff admittedly was masturbating

and “to [his] surprise[,]” Defendant opened the wicket door and Plaintiff was exposed. (Id. at

12.) Allegedly moved by anger and malice, Defendant then proceeded to administer two

bursts of OC pepper spray3 to Plaintiff’s genital area before leaving. (Id.) Plaintiff alleges that

he was left to “suffer in pain and agony” and was not given an opportunity for immediate

decontamination. (Id. at 12, 15.) He was subsequently escorted by officers to receiving to be

decontaminated. (Id. at 15.) Plaintiff alleges that while he was masturbating, he presented no

physical harm to anyone, and the force used by Defendant was excessive. (Id.)

After discovery, Defendant moved for summary judgement, arguing that there are no

genuine issues of material fact which support Plaintiff’s claim of an alleged violation of his

constitutional rights. (Docket Entry 22.) Along with a brief in support of her motion,

Defendant filed a declaration on her behalf. (See Declaration of Dawn Leak, Docket Entry

23-2.) In addition, counsel for Defendant filed a declaration and attached multiple exhibits

which are records maintained by the North Carolina Department of Public Safety (“NCDPS”).

(See Declaration of Counsel, Docket Entry 23-1.)

In pertinent part, Defendant recounts Plaintiff asking for more toilet paper earlier the

night of November 27, 2020. (Leak Decl. ¶ 3.) While “conducting count with a fellow staff

3 “ ‘OC’ is an abbreviation for ‘oleoresin capsicum.’ OC spray is also known as pepper spray

or mace.” United States v. Rodriguez, 392 F.3d 539, 542 n.1 (2d Cir. 2004).

member,” Defendant opened the wicket door to give Plaintiff the toilet paper, and Plaintiff

“had his erect penis sticking out of the wicket door and he was masturbating.” (Id.) Plaintiff

proceeded to ejaculate on the wicket door while Defendant’s hand was still on the wicket door.

(Id.) Thus, to prevent an assault on her person and to restore order, Defendant administered

two short half-second bursts of OC pepper spray towards Plaintiff, closed the wicket door

and reported the incident to her sergeant. (Id.) Defendant felt Plaintiff “set [her] up to be a

victim of a sexual assault” as Plaintiff knew Defendant was delivering the toilet paper to

Plaintiff’s cell. (Id. ¶ 4.) Defendant states that other staff immediately took Plaintiff into the

receiving area to be decontaminated and medically evaluated. (Id. ¶ 5.)

Plaintiff’s medical reports show he suffered a head laceration and ear abrasion that

resulted from an unrelated use of force incident by another officer in the receiving area. (See

Medical Records, Ex. H to Declaration of Counsel, Docket Entry 23-1 at 56-57; see also

Incident Report, Ex. E to Declaration of Counsel, Docket Entry 23-1 at 16, 21.) As a result

of Defendant’s use of pepper spray, an internal investigation commenced, and the incident

report concluded that “[a]ll policies and procedures ha[d] been followed. Only the minimum

amount of force was used.” (Incident Report, Ex. E to Declaration of Counsel, Docket Entry

23-1 at 22.) Following the incident, Plaintiff was charged and convicted of two disciplinary

infractions. (See Disciplinary History, Ex. B to Declaration of Counsel, Docket Entry 23-1 at

7; see also Disciplinary Report, Ex. I to Declaration of Counsel, Docket Entry 23-1 at 64-65.)

Defendant also provided specific surveillance video footage from the area near

Plaintiff’s housing unit and the receiving area on the day of November 27, 2020 at Scotland.

(See Exs. F & G to Declaration of Counsel, Docket Entry 23-1 at 52-53.) Surveillance video

shows Plaintiff being escorted out of his cell and escorted off the unit at approximately 12:24

a.m., which is just minutes after Defendant states her encounter with Plaintiff occurred. (See

Leak Decl. ¶ 3.) The surveillance video also shows that Plaintiff made it to the receiving area

at approximately 12:32 a.m., at which time he was wearing clothes, including socks. When he

is seen leaving the area, he does not have on socks and has a clothing item in his hand which

prison officials take.

II. DISCUSSION

At the outset, because Plaintiff failed “to file a brief or response [to Defendant’s

summary judgment motion] . . . within the time required by [this Court’s Local Rules], the

motion will be considered and decided as an uncontested motion, and ordinarily will be

granted without further notice. M.D.N.C. R. 7.3(k); see also Kinetic Concepts, Inc. v. ConvaTec Inc.,

No. 1:08CV918, 2010 WL 1667285, at *6-8 (M.D.N.C. Apr. 23, 2010) (unpublished) (analyzing

this Court’s Local Rules 7.3(f), 7.2(a), and 7.3(k) and discussing authority supporting

proposition that failure to respond to argument amounts to concession).4 Alternatively, a

review of the record in this case demonstrates that Defendant is entitled to summary judgment

for the reasons stated below.

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

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Zahodnick

4 Plaintiff’s status as a pro se litigant does not excuse his inaction. As observed by the United

States Supreme Court in McNeil v. United States, “[the Supreme Court] ha[s] never suggested that

procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those

who proceed without counsel.” 508 U.S. 106, 113 (1993). “Accordingly, pro se litigants are not

entitled to a general dispensation from the rules of procedure or court-imposed deadlines.” Dewitt v.

Hutchins, 309 F.Supp.2d 743, 749 (M.D.N.C. 2004) (internal quotation marks and citation omitted).

v. Int’l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary

judgment bears the initial burden of coming forward and demonstrating the absence of a

genuine issue of material fact. Temkin v. Frederick Cnty. Comm’rs, 945 F.2d 716, 718 (4th Cir.

1991) (citing Celotex v. Catrett, 477 U.S. 317, 322 (1986)). Once the moving party has met her

burden, the non-moving party must then affirmatively demonstrate that there is a genuine

issue of material fact which requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring

the non-moving party for a fact finder to return a verdict for that party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 817 (4th

Cir. 1995). Thus, the moving party can bear her burden either by presenting affirmative

evidence or by demonstrating that the non-moving party’s evidence is insufficient to establish

his claim. Celotex, 477 U.S. at 331 (Brennan, J., dissenting).

When making the summary judgment determination, the Court must view the

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

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

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

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

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

F.3d 954, 962 (4th Cir. 1996); see also Anderson, 477 U.S. at 248-49.

A. Excessive Force5

Defendant argues that she was justified in the appropriate use of force to stop Plaintiff’s

assault and to restore order. (Docket Entry 23 at 10-17. “The Eighth Amendment protects

prisoners from unnecessary and wanton infliction of pain.” Thompson v. Commonwealth of

Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (internal quotations and citation omitted).6 Prison

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

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

excessive force claim, the Court “must determine ‘whether force was applied in a good-faith

effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’ ” Id. at

98 (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). To make this determination, the Court

5 Defendant’s initial argument is that issue preclusion effectively bars Plaintiff’s excessive force

claim. (See Docket Entry 23 at 8-10.) “Issue preclusion bars successive litigation of an issue of fact

or law actually litigated and resolved in a valid court determination essential to the prior judgment,

even if the issue recurs in the context of a different claim.” Hately v. Watts, 917 F.3d 770, 777 (4th Cir.

2019) (internal quotations and citation omitted). The undersigned finds this argument unpersuasive

for the same reasons explained in Hughes v. Propst, No. 1:21-CV-00164-MR, 2023 WL 3063383, at *6

(W.D.N.C. Apr. 24, 2023).

6 Plaintiff’s Complaint also references Article 1, Section 27 of the North Carolina State

Constitution which prohibits the infliction of cruel and unusual punishment. (See Compl. at 3; see also

N.C. Const. Art. I, § 27.) Defendant is entitled to summary judgment on any claim under the North

Carolina State Constitution for the same reasons discussed herein based on the Eighth Amendment.

See Owen v. Goodwin, No. 1:21-CV-00217-MR-WCM, 2023 WL 6446204, at *7 (W.D.N.C. Sept. 29,

2023) (citing McNeill v. Harnett Cnty., 398 S.E.2d 475, 481 (N.C. 1990) (“Because the North Carolina

Constitution is co-extensive with the Constitution of the United States on the issue of excessive force,

the state constitutional claim must fail for precisely the same reasons.”); Johnson v. N. Carolina Dep’t of

Pub. Safety, No. 1:16-CV-267-FDW, 2019 WL 2011056, at *14 (W.D.N.C. May 6, 2019) (“[Sister] Court

has previously recognized that the analysis for [p]laintiff’s claim under the N.C. Constitution would

be nearly (if not, then exactly) identical as its analysis under the Federal Constitution.”) (internal

quotations and citation omitted); Lewis v. N. Carolina Dep’t of Pub. Safety, No. 1:15-CV-284-FDW, 2019

WL 177480, at *19 (W.D.N.C. Jan. 11, 2019) (“Because [d]efendants are entitled to summary judgment

on [p]laintiff’s medical deliberate indifference claims under the Eighth Amendment’s cruel and

unusual punishment clause, . . . they are likewise entitled to summary judgment based on the N.C.

Constitution’s cruel or unusual punishment clause.”).

considers two elements: “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 quotations and citation omitted).

The objective component

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

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

Gaddy, 559 U.S. 34, 39 (2010) (citing Hudson[, 503 U.S. at 7]); cf.

Wilkins, 559 U.S. at 37 (explaining that the extent of injury

suffered may indirectly “provide some indication of the amount

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

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

at 9. The Eighth Amendment “excludes from constitutional

recognition de minimis uses of physical force, provided that the

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

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

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

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

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

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

(4th Cir. 2015) (quoting Wilkins, 559 U.S. at 37-38).

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

is ‘wantonness in the infliction of pain.’ ” Iko, 535 F.3d at 239 (quoting Whitley v. Albers, 475

U.S. 312, 322 (1986)). The Supreme Court has considered four non-exclusive factors to assist

courts in determining wantonness conduct: “(1) the need for the application of force; (2) the

relationship between the need and the amount of force that was used; (3) the extent of any

reasonably perceived threat that the application of force was intended to quell; and (4) any

efforts made to temper the severity of a forceful response.” Id. (citing Whitley, 475 U.S. at 321)

(internal quotations omitted). “From such considerations inferences may be drawn as to

whether the use of force could plausibly have been thought necessary, or instead evinced such

wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing

willingness that it occur.” Whitley, 475 U.S. at 321.

Here, considering the facts in light most favorable to Plaintiff, there is no genuine issue

of material fact as to whether the use of force by Defendant during the November 27, 2020

incident was excessive. The evidence demonstrates that Defendant deployed the pepper spray

to stop an assault on her person by Plaintiff and to restore order. “Corrections officers act

with a permissible motive not only when they confront immediate risks to physical safety, but

also when they attempt to preserve internal order by compelling compliance with prison rules

and procedures.” Freeman v. Deas, No. 20-7345, 2023 WL 8230805, at *2 (4th Cir. Nov. 28,

2023) (quotations and citation omitted). Courts, including this district, have held that the use

of mace or pepper spray to stop or prevent an assault, whether on staff or other inmates, is

not excessive force. See, e.g., Wright v. Hamilton, No. 1:20-CV-00296-MR, 2022 WL 451306, at

*5 (W.D.N.C. Feb. 14, 2022) (finding that “[c]orrectional officers d[id] not violate an inmate’s

Eighth Amendment rights by using pepper spray to preserve internal order[,]” especially

considering inmate’s assaultive history including a serious assault on an officer the morning

of); Bogues v. Hoover, No. CV CCB-20-829, 2021 WL 1060285, at *6 (D. Md. Mar. 18, 2021)

(“Officer Strope deployed pepper spray on plaintiff after plaintiff attempted to spit on Officers

Strope and Dolly . . . it appears that any force used at that time was applied in a good faith

effort to restore discipline.”); Wright v. Lassiter, No. 1:18-CV-00090-MR, 2020 WL 4734413, at

*7 (W.D.N.C. Aug. 14, 2020) (“Although Defendant Guzman used pepper spray on the

Plaintiff, that use of force was necessary and proportionate to the risk posed by the Plaintiff,

who had just assaulted an officer and was resisting other officers’ attempts to stop the

assault.”); Pyrtle v. Hayes, No. 1:10CV683, 2012 WL 6547497, at *16 (M.D.N.C. Dec. 14, 2012)

(“[T]he use of pepper spray in an attempt to stop an inmate-on-inmate assault, even if

ultimately ineffective, constitutes a reasonable course of action.”). Moreover, Defendant’s

conduct under the circumstances was generally consistent with prison policies regarding use

of force. (See, e.g., NCDPS Policy, Ex. J to Declaration of Counsel, Docket Entry 23-1 at 75

(pepper spray used as “the first level of response [t]o defend the officer or a third party from

imminent assault”).)

Furthermore, the amount of pepper spray used, which was minimal at two half-second

bursts, demonstrates that it was proportional to Defendant’s need for use of the pepper spray;

that is, to stop the assault on her person. Further, Plaintiff’s decision to masturbate and

ejaculate in the direction of, and on, Defendant was more than a perceived threat on

Defendant, thereby justifying the use of pepper spray to deter the conduct, protect Defendant,

and to restore order. While Plaintiff alleges that he suffered pain, including a lingering burning

sensation, see Compl. at 15, he has not responded to Defendant’s motion providing medical

evidence of such claims, nor does Defendant’s evidence reveal such. Therefore, considering

the Whitley factors, Plaintiff has failed to establish a claim for excessive force against Defendant

and summary judgment should thus be entered in her favor. See Keith v. Straker, No. 1:09-CV-

2264-RMG-SVH, 2010 WL 5136201, at *1 (D.S.C. Dec. 8, 2010) (finding no excessive force

claim where report showed that “[p]laintiff was standing naked at his cell flap door with his

erect penis through the flap stroking it in a back and forth motion” and “that [defendant

officer] administered pepper spray after she gave [p]laintiff a direct order to stop and he

refused”) (internal quotations and citations omitted)); Hamlet v. Honeycutt, No. CA 0:12-2410-

TMC, 2013 WL 4495963, at *5 (D.S.C. Aug. 19, 2013) (finding no excessive force where

prisoner was pepper sprayed after masturbating in the presence of staff, given directives to

stop which prisoner ignored).

B. Qualified Immunity

Alternatively, Defendant argues that she is entitled to qualified immunity. (Docket

Entry 23 at 17-19.) Under the doctrine of qualified immunity, “government officials

performing discretionary functions generally are shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982); see also Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006)

(“Qualified immunity shields government officials performing discretionary functions from

personal-capacity liability for civil damages under § 1983[.]”). Thus, the traditional two-step

qualified immunity inquiry requires a court to determine: “(1) whether the official violated a

constitutional right; and if so, (2) whether the right was ‘clearly established’ at the time of its

violation.” Rock for Life-UMBC v. Hrabowski, 411 Fed. App’x 541, 547 (4th Cir. 2010) (citation

omitted).

Here, Plaintiff has not demonstrated a violation of a constitutional right. Instead, the

undisputed evidence illustrates that Defendant did not use excessive force during the

November 27, 2020 incident. Therefore, this Court concludes that Defendant is entitled

to qualified immunity. See Abney v. Coe, 493 F.3d 412, 415 (4th Cir. 2007) (finding that “[i]f [an

official] did not violate any right, he is hardly in need of any immunity and the analysis ends

right then and there”).

III. CONCLUSION

For the reasons sated herein, IT IS HEREBY RECOMMENDED that Defendant’s

Motion for Summary Judgment (Docket Entry 22) be GRANTED, and this action be

dismissed with prejudice.

/s/ Joe L. Webster

United States Magistrate Judge

January 9, 2024

Durham, North Carolina