Kelly v. Solomon

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:17-cv-311-FDW

WILLIE T. KELLY, JR., )

)

Plaintiff, )

)

vs. ) ORDER

)

GEORGE T. SOLOMON, et al., )

)

Defendants. )

__________________________________________)

THIS MATTER comes before the Court on Defendants’ Motion for Summary Judgment,

(Doc. No. 71), and on pro se Plaintiff’s “Motion to Alter Amend the Judgment & Deposition

Before Action or Pending Appeal & Rule 27 Motion to Strike [Doc. 62-63] Motion to Stay [Doc.

14, Doc. 42, Doc. 55-56, 60,” (Doc. No. 66).

I. BACKGROUND

Pro se incarcerated Plaintiff’s Amended Complaint, (Doc. No. 15), passed initial review

on claims of the use of excessive force/failure to intervene against Defendants Codi Laur and

Kevin Ingram, deliberate indifference to a serious medical need against Kenneth Beaver, Alan

Deese, John Herring, Ingram, Jeffrey Krantz,1 Chris Hatley,2 Gregory Hayes3 and Nurse William,

and retaliation against Hayes, Ingram, Krantz, Hatley, Laur, Scott McFaulds, and Gregory Swink.

See (Doc. No. 18). Summary judgment was previously granted in favor of Defendant Hayes, (Doc.

Nos. 42, 59).

1 Defendant “Kenz” in the Amended Complaint.

2 Defendant “Hately” in the Amended Complaint.

3 Defendant “Haynes” in the Amended Complaint.

(1) Amended Complaint (Doc. No. 15)

Plaintiff alleges that he uses a wheelchair and cane, that he needed hip replacement surgery

that he ultimately received, and that his wrist was injured in 2013. On February 13, 2017,

Defendants Herring and Beaver allowed Defendant Deese to take Plaintiff’s doctor-ordered

wheelchair when he had just come back from a bone specialist in Raleigh. Defendant Deese knew

that Plaintiff’s wheelchair was damaged on February 13, 2017 so that it would not roll straight. It

was replaced on March 22, 2017. This inflicted emotional pain and increased pain.

On March 8, 2017, there was a violent incident between gang members in the housing

dorm. Plaintiff commented that, if officers were where they supposed to be on the floor, these

incidents would not happen. Defendant Ingram overheard Plaintiff’s comment. Defendant Ingram

took Plaintiff’s cane and, when Plaintiff asked Defendant Laur to be cuffed in front, Laur hit

Plaintiff so hard he pushed Plaintiff onto the bed and Plaintiff defecated himself. Defendants

Ingram and Krantz escorted Plaintiff to segregation without a wheelchair or cane with his hands

cuffed behind him while knowing his wrist had been injured in 2013. As a result, Plaintiff’s hip

gave out which reinjured him. Staff let go of Plaintiff while Plaintiff was shackled and he hit his

right upper eye and caused a knot on his forehead for which he received six stitches at Anson

hospital. Upon Plaintiff’s return from Anson Hospital after the March 8 incident, Defendant Hatley

put Plaintiff in a suicide cell for five days without blood pressure medication. Dr. Hayes never saw

Plaintiff because Hayes altered his medical record. Hayes stopped Plaintiff’s pain medication and

Plaintiff broke out in a serious rash on his legs, and his blood pressure was high due to an incident

on Anson. Plaintiff appears to allege that, after his hip replacement surgery, Nurse William reduced

his pain medication without a doctor’s approval.

Plaintiff alleges that Defendants Ingram and Krantz subjected him to violence on March 8,

2017, in retaliation for his comment about officers not being at their posts. After Plaintiff returned

from Anson Hospital following the March 8 incident, Defendant Hatley retaliated by placing

Plaintiff in a suicide cell for five days without blood pressure medication, property, or legal mail.

Defendants Ingram, Laur, and McFauld retaliated against Plaintiff by informing inmates about

Plaintiff’s crime, which resulted in him having to be placed in a holding cage which, in turn,

inflicted emotional distress. After Plaintiff was scheduled for hip surgery on October 21, 2017,

Defendant Swink retaliated by intentionally violating his due process classification assignment

because Plaintiff had written a grievance complaining about interference with mail procedures.

Plaintiff seeks declaratory judgment, injunctive relief, compensatory and punitive

damages, court costs, attorney’s fees, a jury trial, and any additional relief that the Court deems

just, proper and equitable.

(2) Defendants’ Motion for Summary Judgment (Doc. No. 71)

Defendants Beaver, Deese, Hatley, Herring, Ingram, Krantz, Laur, McFaulds, Swink, and

Williams seek summary judgment. They accept the facts as set forth in the Court’s Order on initial

review of the Amended Complaint, (Doc. No. 18).

Defendants argue that “Nurse William” is not a proper defendant to this lawsuit because

no such defendant was named in the caption of the Amended Complaint or was served or waived

service, and Disciplinary Hearing Officer A. Williams was dismissed in the Order on initial review.

Defendants argue that Defendant Swink should be granted summary judgment because Plaintiff

failed to exhaust his administrative remedies as to the retaliation claim against Swink.

With regards to Plaintiff’s claims of excessive force, Defendants argue that Laur and

Ingram should be granted summary judgment because there is no evidence to support the

subjective component of the excessive force inquiry. The allegation that Defendant Ingram took

away Plaintiff’s cane and pushed him to his bed are insufficient because, when a lockdown is

underway and an inmate is refusing to obey orders, is aggressive and combative and is being

restrained, it is standard procedure to take away anything like a cane that could be used as a

weapon. With regards to pushing, nothing in the Amended Complaint suggests that pushing

Plaintiff to the bed was excessive. Staff are trained to place an inmate on a flat surface, which the

bed is, and it would also cushion any fall. There is no allegation that Plaintiff hit the bedframe or

was otherwise injured as a result of being placed on the bed. With regards to staff letting Plaintiff

go while he was shackled, resulting in a laceration over his eye, this allegation is insufficient to

state a claim against any Defendant. Plaintiff does not specify which staff member let him fall or

explain when and where this incident occurred and the allegation amounts to simple negligence

and not the knowing disregard of a serious risk of injury.

With regards to Laur, the Defendants who were in Plaintiff’s cell declare that they did not

see any use of force other than minimal hands-on techniques to control Plaintiff, nor did they

observe any sign that Plaintiff defected himself. No knot on Plaintiff’s head or any other injury is

mentioned in the medical notes from March 8, 2017 other than the laceration over his eye that was

mentioned and treated, and the evidence reveals that the laceration occurred after Plaintiff was

escorted to Richmond Unit. There is no evidence other than Plaintiff’s statements that there was

an injury, defecation, or hitting. Plaintiff’s allegations do not make sense in light of the evidence

and he has not set forth more than a scintilla of evidence, which does not create a genuine dispute

of material fact. If there was no use of excessive force by Laur, Defendant Ingram cannot be liable

for failure to intervene. The only potential allegation of excessive force is Laur’s alleged strike to

Plaintiff’s head which, according to the allegations, would have been quick and Ingram would not

have had a reasonable opportunity to intervene.

With regards to Plaintiff’s claims of deliberate indifference to a serious medical need, the

claims against Defendants Deese, Herring, and Beaver should be dismissed because the need for

a wheelchair is not obvious to a lay person. Plaintiff did not have a medical order for a wheelchair

and, on February 27, 2017 during the time of the alleged deprivation, Plaintiff returned from an

uneventful orthopedic appointment with no new orders. Plaintiff was voluntarily provided with a

wheelchair on March 22, 2017. Plaintiff was transferred to Marion C.I., and during the whole time

he was housed there, he was not provided a cane or wheelchair. Plaintiff cannot establish that he

had a serious medical need for a wheelchair at that time and there is no forecast evidence for the

subjective element, i.e., that Herring and Beaver knew of a serious medical condition and ignored

it. Nor is there any constitutional violation for taking a broken wheelchair away from Plaintiff.

Plaintiff alleges that Defendant Hatley was deliberately indifferent for placing Plaintiff in

a suicide cell for five days without blood pressure medication, this allegedly occurred on March

8, 2017 at 11:50PM, however, Hatley’s hours were 8:00 to 17:00 and he would not have been at

work at 23:50 hours that day. Dr. Bowman ordered that Plaintiff be placed on self-injurious

behavior (“SIB”) precautions at 19:25 on March 8 before Plaintiff was sent to Anson. Only medical

staff can administer and withhold medications. Correctional staff such as Defendant Hatley has no

role regarding the administration of medication.

Plaintiff alleges that Defendants Ingram and Krantz were deliberately indifferent by

escorting Plaintiff to segregation on March 8, 2017 without a wheelchair or cane. Plaintiff did not

have a medical order at that time and therefore did not have a serious medical need for one at that

time. Plaintiff alleges that his hip gave out on him in Richmond Unit. However, the altercation and

escort began around 15:30 but Plaintiff was not seen for an eye laceration until 20:20. There is

thus no evidence of a serious medical need and no evidence that Defendants Ingram and Krantz

knew of, and disregarded, such a need.

With regards to Plaintiff’s claims of retaliation, Defendant Hatley was not responsible for

any decision to place Plaintiff in a cell with a camera or for the administration of medication. The

retaliation claims against Defendants Ingram, Lauer, and McFaulds are not specific enough.

Plaintiff alleges that these Defendants informed other inmates about Plaintiff’s crime. However,

he fails to describe the convictions for which he is incarcerated or explain how that would place

him in danger from other inmates. Nor does he say when he was placed in a Richmond holding

cage or how long he remained there such that it caused emotional distress. Records show that

Plaintiff was in a holding cell on March 8, 2017 because of an altercation with staff. When he

returned from Anson Medical Center, he was placed in Anson Unit and remained there until he

was transferred to Marion C.I. in May. Because Plaintiff was placed in Richmond because of an

altercation, he cannot show that his placement in a holding cage was the result of retaliation

because Defendants told other inmates about his crime. Even if he could prove causation, his

conclusory allegations of emotional distress after a short stay in a Richmond holding cage does

not support his claim. To the extent Plaintiff was suicidal, he states in a grievance that this was

because he received bad news about his mother after she was in a car crash.

The claims of retaliation against Defendant Swink are unexhausted and, in any event, there

is no forecast evidence to support this claim. Defendant Swink was an RDU director; he had

nothing to do with the mail and had no reason to retaliate because Plaintiff filed a grievance about

mail. The RDU program has its own step-downs and is not affected by the filing of any grievance.

Therefore, even if the retaliation claim against Swink was not unexhausted, it should be dismissed

because it is vague, conclusory, and unsupported.

Defendants further argue that their official capacity claims are barred by sovereign

immunity and that they are entitled to qualified immunity for the claims against them in their

individual capacities because they did not violate any clearly established right.

(3) Plaintiff’s Response (Doc. No. 83)

Plaintiff contends that Defendants’ Motion for Summary Judgment should be denied

because he has evidence showing that there is ongoing retaliation with incoming and outgoing

mail, that he was assaulted, and that deliberate indifference, cruel and unusual punishment, and

mail tampering are occurring. He also appears to allege that there has been a change in the incident

report and that his due process rights are being violated.

(4) Evidence4

(A) Declaration of Kenneth Beaver (Doc. No. 73-1)

Defendant Beaver was Assistant Superintendent of Custody/Operations at Lanesboro

between October 2012 and May 8, 2017. Beaver was responsible for overseeing all staff and

inmates in his supervisory chain of command to ensure compliance with departmental policies and

procedures.

Plaintiff alleges that Defendant Deese took away his wheelchair and that Defendants

Herring and Beaver allowed that to happen when Plaintiff returned from an appointment with an

outside orthopedic physician. As correctional staff, Beaver would have not been able to, nor would

he have ordered that a medically required wheelchair be taken away from Plaintiff. Beaver “ha[s]

no recollection of [Plaintiff’s] wheelchair being taken away from him, and [has] no recollection of

ordering or ‘allowing’ Correctional Officer Deese to do so.” (Doc. No. 73-1 at 2).

(B) Declaration of Alan Deese (Doc. No. 73-2)

Defendant Deese was a Correctional Officer at Lanesboro in March 2017. Defendant Deese

4 This section is not exhaustive.

“was unaware that [Plaintiff] had a doctor’s order that he necessarily be provided with a

wheelchair” and it is Deese’s understanding that on February 13, 2017, Plaintiff “did not have a

doctor’s order requiring the use of a wheelchair.” (Doc. No. 73-2 at 1). Deese did provide the

wheelchair that Plaintiff was using to another inmate who overdosed. However, the wheelchair

was not operating properly and it was Deese’s understanding that another wheelchair had been

ordered for Plaintiff’s use. It is Deese’s recollection that Plaintiff had a cane and that he was able

to walk with the cane without putting himself in danger.

(C) Declaration of Kimberly D. Grande (Doc. No. 73-3)

Grande is the Executive Director of NCDPS Inmate Grievance Resolution Board

(“IGRB”). IGRB is a separate agency within the Division of Adult Correction of the NCDPS. Its

examiners are charged with investigation of inmate grievances pursuant to the procedures

established by the Administrative Remedy Procedure (“ARP”). ARP establishes a three-tier review

process with IGRB appeal being the final step. Exhaustion is not complete until the IGRB

completes Step-3 review of the grievance appeal and an order is issued by IGRB.

Grande examined the IGRB records for all Step-3 grievance appeals filed by Plaintiff

between June 1, 2015 and November 6, 2018. During this time, IGRB issued 11 orders in response

to Step-3 appeals submitted by Plaintiff. Three of the grievance orders were originated or

concerning Marion C.I. See (Doc. No. 73-4 at 1-4; 73-5 at 1-4, 73-6 at 1-11).

(D) Declaration of David Hatley (Doc. No. 73-7)

Defendant Hatley was the Unit Manager of Anson Unit at Lanesboro in March 2017. He

is familiar with DPS policies and procedures, and Lanesboro SOP regarding use of force and

medical care for inmates.

Defendant Hatley’s hours as Unit Manager were Monday-Friday 08:00 to 17:00. He “can

confirm that [he] was not on duty when [Plaintiff] returned from Anson. Therefore, [he] could not

have ordered [Plaintiff] to be placed in a cell with a camera.” (Doc. No. 73-7 at 2). “[I]n this case,

mental health staff ordered [Plaintiff] to be housed in a cell with a camera because he was on the

highest level of Self-Injurious Behavior precautions.” (Doc. No. 73-7 at 2).

Plaintiff alleges that Defendant Hatley withheld blood pressure medication or ordered that

it not be administered. “Custodial staff has no control over the administration of medication.

Nurses administer medication at the direction of a physician. If the medication was not

administered it was done at the direction of medical staff. [Hatley] did not have anything to do

with the administration of medication to [Plaintiff]; nor did [Hatley] order or direct the medical

staff not to administer medication. [Hatley] did not otherwise retaliate against [Plaintiff].” (Doc.

No. 73-7 at 2).

(E) Declaration of John Herring (Doc. No. 73-8)

In March 2017, Defendant Herring was Superintendent of Lanesboro C.I. Herring is

familiar with NCDPS policies and procedures, and Lanesboro SOP re use of force, conditions of

confinement and programs provided at the facility.

Plaintiff alleges that Defendant Herring allowing Defendant Deese to take Plaintiff’s

wheelchair away on February 17, 2017. However, “[u]ntil Plaintiff filed this lawsuit, [Herring]

had no knowledge or memory whatsoever of Plaintiff’s wheelchair being taken away.” (Doc. No.

73-8 at 2).

With respect to the necessity of use of a wheelchair is a medical issue, and as correctional

staff neither Herring nor any of his correctional staff would have controlled the process relating to

the prescription, ordering or requiring the use of a wheelchair. Herring aware that some inmates

are provided with a wheelchair even if it is not required, ordered or prescribed by the medical staff,

but the provision of the wheelchair in that instance is voluntary and for the convenience of the

inmate. Regardless, in February and March of 2017 Herring “had no knowledge of Officer Deese

taking away Plaintiff’s wheelchair.” (Doc. No. 73-8 at 2).

Herring does not remember having a discussion with Plaintiff or interacting with him. As

administrator, Herring did review the incident report of the March 8, 2017 incident and reviewed

video of the incident that is being provided to the Court. See (Doc. No. 73-9).

(F) Declaration of Kevin Ingram (Doc. No. 73-10)

In March 2017, Defendant Ingram was Unit Manager of Union Unit at Lanesboro. As such,

he is familiar with DPS policies and procedures and Lanesboro SOP re use of force.

On March 8, 2017, at approximately 15:10, Ingram was called for a lockdown in A-Pod of

Union Unit. Lockdown is when the inmates must leave the common area and go to their cells

which are then locked. After the lockdown was announced Plaintiff became “loud and aggressive

and did not immediately go to his cell.” (Doc. No. 73-10 at 2). Plaintiff was given several orders

to submit to restraints, but he refused and retreated to his cell. In the cell, Ingram saw Plaintiff

“backswing his right hand at Officer Laur.” (Id.). Ingram then used both hands to assist Plaintiff

onto his bunk. This was pursuant to staff training to gain control of an inmate by placing the inmate

against a flat surface such as a wall or the floor. In this case, the bed was used as a flat surface.

The bed did have a mattress on it. Ingram “took [Plaintiff’s] cane away since it could be used as a

weapon.” (Id.). It is standard procedure when attempting to disarm an inmate and take anything

that could be used as a weapon. Officer Laur and other staff used hands-on techniques to control

Plaintiff while Ingram placed restraints on him. Plaintiff was then escorted to restrictive housing

without further incident. “Neither [Ingram] nor any other staff used any force other than the hands-

on force necessary to maintain control of [Plaintiff]. [They] did not hit him, kick him or shove him

to the ground forcefully.” (Id.).

Ingram is aware that Plaintiff alleges that in some of his versions of events that he hit his

head on the bedframe cutting his head and requiring stitches. “That is not true. [Plaintiff] did not

hit his head on the bedframe. He was not cut or bleeding when he left his cell.” (Doc. No. 73-10

at 3). Ingram is also aware that in one of his versions of events Plaintiff claims that staff let go of

Plaintiff while he was shackled and he fell and hit his head causing the cut. “[Plaintiff] did not fall

and cut his head while [Ingram] was in his cell or at any time that [Ingram] observed.” (Id.). Ingram

is also aware that Plaintiff says he defecated on himself. Ingram “did not observe or smell anything

to suggest that he had defecated on himself in his cell.” (Id.) “The minimal hands-on force that we

used was necessary for the custodial goal of restraining [Plaintiff].” (Id.). Ingram is also aware that

Plaintiff alleges that Ingram took away his cane and he later fell because of it. “[Plaintiff’s] cane

was taken away for security reasons.” (Id.). In addition, Plaintiff could not have used a cane while

he was in full restraints, but while he was in full restraints he would have been escorted by two

officers, one on each side, to assist him in walking.

(G) Declaration of Jeffrey Krantz (Doc. No. 73-11)

Defendant Krantz was a Correctional Sergeant at Lanesboro C.I. in March 2017. He is

aware that Plaintiff is making claims of deliberate indifference and retaliation against him.

On March 8, 2017, Krantz was conducting a pat-down in Moore Unit when he was called

to the A-Pod of Union Unit. When Krantz got there, he saw Plaintiff in his cell resisting being

placed in restraints. Krantz assisted in getting Plaintiff under control so that complaints could be

applied. Krantz did not see any use of force other than minimal force using hands-on techniques

in order to control Plaintiff. Once Plaintiff was in full restraints Krantz helped Officer Snipes escort

Plaintiff to restrictive housing. Plaintiff was in full restraints while they escorted him which

hampered his walking. But Plaintiff attempted to pull away from us and at times refused to walk.

He was given several orders to stop resisting and keep walking. When they got near central control,

Krantz was relieved of escort duties and returned to his unit.

Officers Krantz and Snipes did not “let go” of Plaintiff at any time while Krantz was

escorting him. (Doc. No. 73-11 at 2). Plaintiff did try to pull away several times, but each time

Officers Snipes and Krantz regained control and placed our hands on his elbows to support and

guide him. Plaintiff did not fall and cut his head while Krantz was in his cell or while Krantz was

escorting him. While Krantz was escorting Plaintiff, “he did not have a cut on his forehead.” (Id.).

“[Plaintiff] was able to walk without his cane. Although his walk was hampered by the full

restraints, and at times he walked slowly, [Krantz] did not notice any limping or unsteady gait.”

(Id.).

Krantz “did not retaliate against [Plaintiff].” (Id.). Krantz was not even assigned to Anson

Unit. At that time, Krantz was assigned to Moore Unit. Krantz had no reason to retaliate against

Plaintiff. Krantz simply assisted in maintaining control until Plaintiff was restrained and began

escorting him to restrictive housing. All of that was “ordinary and according to policy.” (Doc. No.

73-11 at 3).

(H) Declaration of Scott McFaulds (Doc. No. 73-12)

Defendant McFaulds was the Assistant Unit Manager at Lanesboro C.I. as of April 2015.

In March 2017, he was the Unit Manager of Anson Unit. Defendant McFaulds is familiar with

DPS policies and procedures, and Lanesboro SOP regarding use of force.

Defendant McFaulds does not know why he is a Defendant in this case. His recollection of

events relating to Plaintiff are that Plaintiff got into an altercation on the Union Unit which is

located on the other side of the facility from where McFaulds was assigned. After the altercation,

the offender was taken to the Richmond Unit, which is still across the hall from Anson Unit,

McFauld’s assigned section, and was placed in a holding cage. McFaulds does remember going to

the Richmond Unit and seeing him in the cage but that was the only time McFaulds had seen him.

According to the computer records, Plaintiff was transported to the hospital for treatment on March

8, 2017. Upon Plaintiff’s return from Anson Medical Center on March 9, 2017, at approximately

0031 hours, Plaintiff was placed on McFaulds’ unit, Anson Unit, in an observation cell after he

commented to staff that he was going to hang himself. Plaintiff remained in McFaulds’ unit,

Anson, in Restricted Housing for Control Purposes (“RHCP”) until he was transferred to Marion

Correctional Facility in May 2017. RHCP is the most restrictive housing level in North Carolina

state prisons. It is essentially what used to be called isolation.

With regards to the allegation that Ingram, Laur and McFaulds informed inmates about

Plaintiff’s “Crime,” McFaulds did not know what Plaintiff was in prison for until McFaulds had

to do research for this case. The fact that Defendants Ingram and Laur worked on a different unit

than McFaulds is contradicting in itself. If the “Crime” was filing a grievance, McFaulds did not

tell any inmates about his grievance. McFaulds does not even remember Plaintiff filing a

grievance. Even if he had, that would not have caused any reaction from the prisoners at all.

McFaulds simply did not do anything that was not according to the policies and procedures of DPS

and Lanesboro.

(I) Declaration of Gregory Swink (Doc. No. 73-13)

Defendant Swink became Program Director II at Marion C.I. in March 2016 and held that

position in Spring 2017. Plaintiff assaulted staff on March 8, 2017. As a result, Plaintiff was placed

on RHCP on April 5, 2017, to protect staff and other inmates at Lanesboro C.I. The assignment to

RHCP was one of the qualifications for transfer to Marion Correctional Unit and entry into the

RDU program.

Swink and his staff routinely review inmates in RHCP for their qualification for the RDU

program. There are a number of items that are looked at with regard to selection. It is a group

decision which includes the inmate’s file being reviewed for conflicts with other inmates and

review of the inmate’s file by the psychological staff. RDU is not a voluntary program. It is a step-

down assignment from RHCP. In other words, it helps the inmate get off RHCP and back to the

general population. The inmate can control his status by completing certain tasks and remaining

infraction free.

Pursuant to classification policy C0102.1(c), offenders assigned to RDU shall not require

a classification review until program completion. However, if the inmate successfully meets

certain standards, the inmate receives more privileges and less controlled incarceration. If the

inmate successfully completes the entire program, they go off control altogether and can be

released into general population.

Plaintiff was transferred to Marion for the RDU Program on May 25, 2017. After transfer

to Marion, Plaintiff was removed from control status and assigned to the RDU Program that same

day.

Defendant Swink “did not interfere with [Plaintiff’s] rights or progress while he was here

or in selecting him for the program because he filed a grievance regarding the mail.” (Doc. No.

73-13 at 3). Swink was not even aware that Plaintiff filed a grievance relating to the mail. The

RDU program has nothing to do with delivery or sending of mail, so Swink did not and would not

care if Plaintiff filed a grievance dealing with the mail. There was no reason for Swink to do

anything affecting Plaintiff’s due process classification. Swink “[is] not entirely sure exactly what

[Plaintiff] is complaining about when he alleges that [Swink] retaliated by interfering with his ‘due

process’ in prison. As indicated above, the RDU program has its own mileposts for step-downs.

The filing of a grievance would not have affected his progress. To the extent that [Plaintiff] did

not progress as quickly as others, it was because he had two infractions during his time in the RDU

program … [for] Sexual Act; and Threaten to Harm Staff. [Plaintiff] pled guilty to the sexual act

infraction and the threat to harm staff infraction. Those infractions, and especially the threat to

harm staff would have held him back from a ‘step-down’ – meaning he would not have gained

certain privileges as quickly as other inmates who did not have infractions or who had minor

infractions.” (Doc. No. 73-13 at 3).

During the time that Plaintiff was housed at Marion, he was able to walk without a cane or

wheelchair, although he did request and receive special shoes. (Doc. No. 17-13 at 3).

Plaintiff graduated from the RDU Program on October 9, 2018 and would have gone back

to the general population. Unfortunately, it appears that he received an infraction for fighting with

another inmate since he graduated, and Swink does not know what Plaintiff’s current status is.

(J) Declaration of Dena West (Doc. No. 17-14)

Dena West is a board certified registered nurse and was Nurse Supervisor II at Lanesboro

as of January 2017. West is familiar with NCDPS policy and procedure and Lanesboro SOP, and

specifically, Health Services Policy and Procedure Manual. Her responsibilities include:

“medication administration, providing clinical oversight to the nursing staff at Lanesboro,

providing oversight to the daily operations of the nursing staff at Lanesboro, reviewing and relying

upon patient medical records, including patient charts and notes made by nurses and supervising

nursing staff in delivering care as directed by orders of physicians, physician extenders, and nurse

practitioners, and assisting in other capacities as needed.” (Doc. No. 73-14 at 2). West reviewed

Plaintiff’s medical records, which are kept in the course of regularly conducted business and bases

her declaration in part on those records.

Based on West’s experience and training: “the Correctional Staff5 are not health care

providers and were not, at any relevant time, responsible for personally providing clinical care to

inmates at Lanesboro including their medication and medical treatment. They were also not

responsible for the clinical supervision of any health care providers at the facility. Non-medical

correctional officials such as Correctional Staff are only allowed limited information regarding an

inmate’s health pursuant to the Health Insurance Portability and Accountability Act. Further, the

Correctional Staff would not have any training regarding the appropriate medical treatment for

patients nor would they have had the ability to control or alter a plan of care concerning any

patient’s medical care.” (Doc. No. 73-14 at 3).

From reviewing Plaintiff’s medical records from February to March 2017, “it does not

appear that he had a medical order for a wheelchair. Nonetheless, he was voluntarily provided one

on March 22, 2017. (Id.).

With regards to the March 8, 2017 incident, Plaintiff was examined by a nurse at the prison

medical facility at approximately 20:20 that day. Plaintiff presented with a cut over his left eye

which he said happened when he fell in a holding cage. (Doc. No. 73-14 at 4). “The nurse did not

record or note any other injuries and she specifically did not report an injury to the right side of

his head.” (Id.). Plaintiff was given first aid then sent to the Emergency Department of Anson

Medical Center for stitches.

“[T]he Correctional Staff are not responsible for the health care – including mental health

care of the inmates.” (Id.). Dr. Marvella Bowan, a psychologist in Lanesboro C.I., ordered that

Plaintiff be put on Level 1 SIB precautions and that he be placed in a cell with a camera at 19:25

5 Herring, Beaver, Deese, and Hatley are “Correctional Staff.” (Doc. No. 73-14 at 3).

on March 8 – before he was sent to Anson Medical Center. That order for Level-1 SIB precautions

is noted in the clinical encounter after his return to Lanesboro after being seen at Anson Medical

Center.

“[C]orrectional staff at Lanesboro had no involvement with the administration of

medication. Correctional staff was not allowed to intervene or interfere with the administration of

medication. Correctional staff could not prohibit the administration of medication to the inmates.”

(Id.). Nurses are the ones administering the medication and West trains them to report directly and

immediately to West if correctional staff interferes with the healthcare of the inmates, including

administration of medication. Prescriptions for medications are strictly controlled by physicians

and physician-extenders. Nurses under West’s supervision do not deviate from the physicians’

orders regarding medication. “Mr. Hatley did not, and could not have interfered with the

administration of medication – regardless of where [Plaintiff] was housed.” (Doc. No. 73-14 at 5).

In addition to the policy, West reviewed Plaintiff’s medical records and has seen “no indication

that Mr. Hatley interfered with the administration of medicine to [Plaintiff].” (Id.).

(K) Time Line

2/27/17 Clinical Encounter – Administrative Note by Nurse Janet Truong: “1300-IM has

returned from ortho apt, he has no new orders. He reports that his trip to the doctor

apt was uneventful. He became upset and agitated and extremely hostile and yelling

when I told that w/c’s are on back order and he would have to use his cane to walk

back to his unit….” (Doc. No. 73-15 at 1)

3/8/17 Incident Report for use of force incident (Doc. No. 73-9)

Clinical Encounter – Administrative Note by Nurse Sandra Gregory: “Offender

presented in main medical with a 4 cm horizontal laceration above lateral aspect of

L eyebrow. 0.5 cm in width at center of laceration. Offender states his hip gave

out and he fell in the holding cell. Provider notified and telephone order rec’d to

send to local ED via state car for eval.” (Doc. No. 73-17 at 1) (emphasis added)

3/9/17 Clinical Encounter – Administrative Note by Nurse Gregory: “Offender returned

from Anson ED with 6 sutures intact over lateral aspect of L eyebrow. Per telephone

report from ED nurse, sutures are to be removed in 5-10 days. Per mental health,

offender is level 1 SIB and will be housed in a camera cell in the Anson unit.”

(emphasis added)

3/11/17 Emergency Grievance (4865-2017-NPODC-00534) by Plaintiff: “On 3-8-17, while

housed on Union A-47, two (2) staff members entered A-pod, yelling, ‘Lock

Down!’ I hung up the phone and a staff member yelled at me and I stated, ‘If y’all

keep an officer on post, these incidents wouldn’t happen.’ As I entered my cell <A-

47>, both of the staff members entered behind me and one of them tried to cuff me

from behind. Due to the fact that I walk with a cane and use a wheelchair, I loss my

balance and the other officer punched me in my temple with a closed fist.

Afterwards I was escorted to Anson Unit and placed in a holding cage. As I sat in

the holding cage, I tried to commit suicide because I had just received bad news

from home concerning my folks. Staff came and stopped me then moved me to a

holding cage on lower Richmond Unit. I tried to stand up and my hip gave out

on me and I fell and burst my left eye. Staff left me lying on the floor for a long

period of time without notifying medical, until the blood dried up and I became

conscious. Afterwards, I was taken to Medical checked by the Nurse and given a

shower because I defecated on myself during the use of force. Later I was taken to

Anson Co Hospital and I received six (6) stitches….” (Doc. No. 73-18 at 2-3)

(emphasis added).

3/22/17 Clinical Encounter – Administrative Note by Nurse Amba Totou: “Wheel Chair

issued to patient at this time.” (Doc. No. 73-16 at 1).

5/25/17 Transfer to Marion C.I.’s RDU (Doc. No. 73-13)

III. LEGAL STANDARDS

(1) Summary Judgment

Summary judgment shall be granted “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.” Fec. R. Civ. P.

56(a). A factual dispute is genuine “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). A

fact is material only if it might affect the outcome of the suit under governing law. Id.

The movant has the “initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted). Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there is a genuine issue for

trial.” Id. at 322 n.3. The nonmoving party may not rely upon mere allegations or denials of

allegations in his pleadings to defeat a motion for summary judgment. Id. at 324. The nonmoving

party must present sufficient evidence from which “a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md.,

48 F.3d 810, 818 (4th Cir. 1995).

When ruling on a summary judgment motion, a court must view the evidence and any

inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477

U.S. at 255. “‘Where the record taken as a whole could not lead a rational trier of fact to find for

the nonmoving party, there is no genuine issue for trial.’” Ricci v. DeStefano, 557 U.S. 557, 586

(2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

(2) Exhaustion

The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust his

administrative remedies before filing a section 1983 action. 42 U.S.C. § 1997e(a). The PLRA

provides, in pertinent part: “[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.” Id.

The PLRA’s exhaustion requirement applies to all inmate suits about prison life. Porter v. Nussle,

534 U.S. 516 (2002). Exhaustion is mandatory. Id. at 524 (citation omitted); Jones v. Bock, 549

U.S. 199, 211 (2007). Exhaustion must take place before the commencement of the civil action in

order to further the efficient administration of justice. Id. A prisoner is not entitled to exhaust

administrative remedies during the pendency of an action. Cannon v. Washington, 418 F.3d 714,

719 (7th Cir. 2005); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). The PLRA requires

“proper” exhaustion, that is, “using all steps that the agency holds out, and doing so properly (so

that the agency addresses the issues on the merits).’” Woodford v. Ngo, 548 U.S. 81, 90 (2006)

(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)).

“The level of detail necessary in a grievance to comply with the grievance procedures will

vary from system to system and claim to claim, but it is the prison’s requirements, and not the

PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. It is well settled

that a grievance does not have to mention a defendant by name so long as the grievance gives the

defendant fair notice of the claim. See Moore v. Bennette, 517 F.3d 717, 729 (4th Cir. 2008).

However, regardless of whether a particular defendant is named in a grievance, if the grievance

fails to give prison authorities fair notice of, and the opportunity to address, the problem that will

later form the basis of the suit against that defendant, dismissal of that defendant is appropriate.

See Davidson v. Davis, 2015 WL 996629 at *3 (W.D.N.C. Mar. 6, 2015) (citing Johnson v.

Johnson, 385 F.3d 503, 516-17 (5th Cir. 2004)).

NCDPS policy has a three-step administrative remedy procedure that requires an inmate to

complete all three steps in order to fully exhaust a grievance.6

(3) Excessive Force

“[T]he treatment a prisoner receives in prison and the conditions under which he is

confined are subject to scrutiny under the Eighth Amendment,” Helling v. McKinney, 509 U.S.

25, 31 (1993). In its prohibition of “cruel and unusual punishments,” the Eighth Amendment places

restraints on prison officials, who may not, for example, use excessive physical force against

6 The Court takes judicial notice of this portion of NCDPS’s Policy and Procedures as a matter of public

record. See Fed. R. Ev. 201.

prisoners. See Hudson v. McMillian, 503 U.S. 1, 1 (1992).

A prison official violates the Eighth Amendment only when two requirements are met.

First, the deprivation alleged must be, objectively, “sufficiently serious,” Wilson v. Seiter, 501

U.S. 294, 298 (1991); see also Hudson, 503 U.S. at 5, and must result in the denial of “the minimal

civilized measure of life’s necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The second

requirement is that a prison official must have a “sufficiently culpable state of mind.” Wilson, 501

U.S. at 297, 302-03; Hudson, 503 U.S. at 5, 8. “[T]he use of excessive physical force against a

prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer

serious injury.” Hudson, 503 U.S. 1, 4 (1992); see Wilkins v. Gaddy, 559 U.S. 34, 34 (2010). The

“core judicial inquiry,” is not whether a certain quantum of injury was sustained, but rather

“whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.” Hudson, 503 U.S. at 7. “When prison officials maliciously and

sadistically use force to cause harm,” the Court recognized, “contemporary standards of decency

always are violated ... whether or not significant injury is evident. Otherwise, the Eighth

Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting

less than some arbitrary quantity of injury.” Hudson, 503 U.S. at 9, 13–14.

The Fourth Circuit addresses a failure to intervene claim as a theory of “bystander liability”

wherein there is “an omission to act...coupled with a duty to act.” Randall v. Prince George's Cnty.,

302 F.3d 188, 202 (4th Cir. 2002). A “bystander officer” could be liable for his or her nonfeasance

if he or she: “(1) knows that a fellow officer is violating an individual’s constitutional rights; (2)

has a reasonable opportunity to prevent the harm; and (3) chooses not to act.” Id. at 204. However,

if no excessive force is applied by the fellow officer, the officer witnessing the conduct “cannot be

held liable under bystander liability for a failure to intervene.” Howie v. Prince George’s Cnty.,

2009 WL 2426018 at *6 (D. Md. Aug. 5, 2009); see also Jarvis v. Securitas Sec. Servs. USA, 2012

WL 527597 (D. Md. Feb. 16, 2012).

(4) Deliberate Indifference to a Serious Medical Need

“[T]he Eighth Amendment’s prohibition against ‘cruel and unusual punishments’ [extends]

to the treatment of prisoners by prison officials” and “forbids the unnecessary and wanton

infliction of pain,” Hill v. Crum, 727 F.3d 312, 317 (4th Cir. 2013) (internal quotations omitted).

Prisoners alleging that they have been subjected to unconstitutional conditions of

confinement must satisfy the Supreme Court’s two-pronged test set forth in Farmer v. Brennan,

511 U.S. 825, 832 (1994). See Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016). The plaintiff

must show that he had serious medical needs, which is an objective inquiry, and that the defendant

acted with deliberate indifference to those needs, which is a subjective inquiry. See Iko v. Shreve,

535 F.3d 225, 241 (4th Cir. 2008). In order to be sufficiently serious, the deprivation must pose “a

serious or significant physical or emotional injury resulting from the challenged conditions,” or “a

substantial risk of such serious harm resulting from ... exposure to the challenged conditions.”

De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (internal quotation marks and citation

omitted). To constitute deliberate indifferent to a serious medical need, “the treatment [a prisoner

receives] must be so grossly incompetent, inadequate, or excessive to shock the conscience or to

be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990),

overruled on other grounds by Farmer, 511 U.S. at 825. Negligence or malpractice does not violate

the Eighth Amendment. Miltier, 896 F.2d at 852. Further, “mere ‘[d]isagreements between an

inmate and a physician over the inmate’s proper medical care’ are not actionable absent

exceptional circumstances.” Scinto, 841 F.3d at 225 (quoting Wright v. Collins, 766 F.2d 841, 840

(4th Cir. 1985)).

(5) Retaliation

Prison officials may not retaliate against an inmate for exercising a constitutional right. See

Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir.1978). To succeed on such a claim, a plaintiff

must first allege that “the retaliatory act was taken in response to the exercise of a constitutionally

protected right....” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Thereafter, a plaintiff must

demonstrate that he suffered some adverse impact or actual injury. See American Civil Libs. Un.

of Md., Inc. v. Wicomico Cnty., 999 F.2d 780, 785 (4th Cir. 1993) (citing Huang v. Board of

Governors of Univ. of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990)). In addition, a plaintiff must

come forward with specific evidence “establish[ing] that but for the retaliatory motive the

complained of incident[s] ... would not have occurred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th

Cir. 1995); accord Ponchik v. Bogan, 929 F.2d 419, 420 (8th Cir.1991) (plaintiff must show that

action would not have occurred “but for” the alleged reprisal); Collinson v. Gott, 895 F.2d 994,

1002 (4th Cir. 1990) (Phillips, J., concurring); McDonald v. Hall, 610 F.2d 16, 18–19 (1st Cir.1979).

In the prison context, such claims are treated with skepticism because “[e]very act of discipline by

prison officials is by definition ‘retaliatory’ in the sense that it responds directly to prisoner

misconduct.” Adams, 40 F.3d at 74.

(6) Sovereign Immunity

The Eleventh Amendment bars suits directly against a state or its agencies, unless the state

has waived its immunity or Congress has exercised its power under § 5 of the Fourteenth

Amendment to override that immunity. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66

(1989). Congress has not imposed § 1983 liability upon states, and the state of North Carolina has

done nothing to waive its immunity. Bright v. McClure, 865 F.2d 623, 626 (4th Cir. 1989) (citing

McConnell v. Adams, 829 F.2d 1319, 1328 (4th Cir. 1987)).

“[A]n official capacity suit is, in all respects other than name, to be treated as a suit against

the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Therefore, a lawsuit against an officer

in his official capacity is, in substance, a claim against the governmental entity and should be

subject to the same analysis. See Almone v. City of Long Beach, 478 F.3d 100, 106 (2d Cir. 2007);

see Hutto v. S.C. Retirement Sys., 773 F.3d 536, 549 (4th Cir. 2014) (State officials sued in their

official capacities for retrospective money damages have the same sovereign immunity accorded

to the State).

(7) 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Qualified immunity “balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). The existence of qualified immunity “generally turns on the

‘objective reasonableness’ of the actions” without regard to the knowledge or subjective intent of

the particular official. Am. Civil Libs. Union of Md., Inc., 999 F.2d at 784 (quoting Anderson v.

Creighton, 483 U.S. 635, 639, 641 (1987)) (internal citations omitted).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court mandated a two-step sequence

for resolving government officials’ qualified immunity claims by determining whether: (1) the

facts that a plaintiff has alleged or shown make out a violation of a constitutional right; and (2) the

right at issue was “clearly established” at the time of defendant’s alleged misconduct. While the

sequence of the steps set forth in Saucier is “often appropriate,” it is not mandatory. Pearson, 555

U.S. at 236. Judges are permitted to exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed first in light of the circumstances

in the particular case at hand. Id.

To overcome the qualified immunity defense at the summary judgment stage, the plaintiff

must have shown facts that make out a violation of a constitutional right, and the right at issue

must have been “clearly established” at the time of the defendant’s alleged misconduct. Thompson

v. Commonweath of Va., 878 F.3d 89, 97 (4th Cir. 2017) (citing Pearson, 555 U.S. at 232). The

analysis takes place against the backdrop of two dueling interests: “the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555

U.S. at 231.

To find a right is clearly established does not mean that “the exact conduct at issue [must]

have been held unlawful for the law governing an officer’s actions to be clearly established.”

Amaechi v. West, 237 F.3d 356, 362 (4th Cir. 2001). Rather, the court’s analysis must take into

consideration “not only already specifically adjudicated rights, but those manifestly included

within more general applications of the core constitutional principle invoked.” Id. at 362-63

(internal quotation omitted). Ordinarily, the unlawfulness of government conduct must be apparent

in light of pre-existing law. White v. Pauly, 137 S.Ct. 548, 442 (2017). However, a “general

constitutional rule … may apply with obvious clarity ... even though the very action in question

has not previously been held unlawful. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (citing United

States v. Lanier, 520 U.S. 259, 271 (1997)). Therefore, “officials can still be on notice that their

conduct violates established law even in novel factual circumstances.” Id. at 741.

IV. DISCUSSION

(1) Defendant Willams

Defendants argue that “Nurse William” is not captioned as a party to this lawsuit, has not

been served or waived service, that DHO Alfred Williams was dismissed in the initial review, and

that no other Defendant Williams appears in this case. Plaintiff does not attempt to refute any of

the foregoing and Defendants’ Motion for Summary Judgment will be granted as to Defendant

Williams.

(2) Defendant Swink

Defendants argue that Plaintiff failed to exhaust his administrative remedies with regards

to his claim against Defendant Swink because he never completed the third step of the grievance

process. See (Doc. No. 73-3) (Grande Declaration). Plaintiff has not come forward with evidence

proving that he exhausted his administrative remedies with regards to Defendant Swink. Therefore,

summary judgment in favor of Defendant Swink will be granted for lack of exhaustion.

(3) Excessive Force

Plaintiff claims that Defendants Laur and Ingram used excessive force against him and/or

failed to intervene with regards to the March 8 incident, that Defendant Ingram threw or took

Plaintiff’s cane and pushed Plaintiff onto his bed, that Laur hit Plaintiff so hard on the temple that

Plaintiff defecated himself and had a “knot” on Plaintiff’s forehead, and that “staff” let go of him

while he was shackled which caused him to hit his right upper eye that required stitches. (Doc. No.

15-1 at 5).

Defendants have presented evidence that Ingram took away Plaintiff’s cane during the

confrontation pursuant to standard procedure because a cane could be used as a weapon in the

hands of a non-complying and aggressive inmate. A videotape of the dayroom confirms that

Plaintiff was swinging his cane around in the air as he walked towards his cell. Defendants also

presented evidence that Plaintiff struck Defendant Laur’s face while he was resisting and that

Defendant Ingram used both hands to place Plaintiff against a flat surface – Plaintiff’s bed – to

gain control of him pursuant to staff training. Taking a potential weapon away from a resisting and

uncooperative prisoner and placing him against a cushioned flat surface to regain control and

compliance fail to rise to the Eighth Amendment level of force. Plaintiff has failed to demonstrate

that a genuine dispute of material fact exists with regards to these actions by Defendant Ingram.

With regards to Plaintiff’s claim that Defendant Laur struck him hard on the temple,

Defendant Ingram also denies that he, Laur, or any of his staff hit, kicked, or shoved Plaintiff to

the ground forcefully, but rather, that the minimal hands-on force that officers used was necessary

to restrain Plaintiff. Defendant Krantz’s affidavit also states that he did not see any use of force

other than minimal hands-on techniques and assisted in escorting Plaintiff to restrictive housing.

(Doc. No. 73-11 at 2). However, there is no videotape from inside the Plaintiff’s cell and no

affidavit by Defendant Laur has been filed. Plaintiff and Defendants have presented conflicting

evidence about whether Defendant Laur struck Plaintiff on the temple inside the cell. The existence

of this genuine dispute of material fact precludes summary judgment for Defendant Laur on

Plaintiff’s claim of excessive force. However, Plaintiff has failed to demonstrate a genuine dispute

of material fact with regards to Defendant Ingram’s alleged failure to intervene in Laur’s use of

force. In his affidavit, Ingram denies that any hitting occurred. Plaintiff has failed to come forward

with any evidence that Ingram saw and had a reasonable opportunity to prevent Laur’s single strike

to Plaintiff’s head, and chose not to act. See, e.g., N.C. ex rel. Hailey v. Westmoreland, 267 F.

Supp. 2d 497, 502 (M.D.N.C. 2003) (granting summary judgment for defendant officer who did

not have a reasonable opportunity to prevent harm to the plaintiff where another officer’s act in

striking the plaintiff occurred, if it all, without warning and in a very brief time period); Dukes v.

Richards, 2009 WL 9056101 (E.D.N.C. Aug. 27, 2009) (granting summary judgment where the

record indicated that, even if the defendant officer was standing next to the plaintiff during the

alleged incident, the defendant officer would not have had a reasonable opportunity to prevent

another officer’s sudden decision to kick the plaintiff). Therefore, although the excessive force

claim against Defendant Laur survives summary judgment, any failure to intervene by Defendant

Ingram does not.

Plaintiff’s allegations that staff allowed him to fall, causing a laceration, are refuted by

objective evidence as well as by Plaintiff’s own grievance. Nurse’s notes and surveillance video

of Plaintiff’s escort to segregation reveal that Plaintiff did not have a facial laceration after the

incident in his cell and that staff did not let go and allow him to fall during the escort. Plaintiff’s

own grievance that he filed a few days after the incident states that he fell and lacerated his face

while trying to stand up in a holding cell on Richmond Unit following his suicide attempt. (Doc.

No. 73-18 at 3). Plaintiff has failed to create a genuine dispute of material fact about whether staff

let go of him and caused the laceration to his head and Defendants will be granted summary

judgment on that portion of the excessive force claim.

Therefore, all Defendants will be granted summary judgment on Plaintiff’s claims of

excessive force and failure to intervene except Defendant Laur, for whom summary judgment will

be denied on the claim of excessive force.

(4) Deliberate Indifference to a Serious Medical Need

Plaintiff claims that Defendants Herring, Beaver, and Deese were deliberately indifferent

to a serious medical need by depriving him of a wheelchair and failing to promptly replace his

wheelchair after it broke, that Defendants Ingram and Krantz escorted Plaintiff to segregation

without a wheelchair or cane with his hands cuffed behind him while knowing his wrist had been

injured in 2013 and his hip gave out as a result, and that Defendant Hatley placed Plaintiff in a

suicide cell for five days without blood pressure medication.

Defendants have presented evidence that Plaintiff did not have a medical order for a

wheelchair at the relevant time, but that inmates are sometimes provided with a wheelchair by

correctional staff as a courtesy. Plaintiff has failed to establish that he had a serious medical need

for a wheelchair or that the Defendant correctional officers, who are not medical personnel, were

deliberately indifferent by failing to provide a courtesy wheelchair during the entire period when

he wished for one. Plaintiff has also failed to establish that a wrist injury in 2013 was a serious

medical need in March 2017 that precluded handcuffing behind his back, and that the Defendant

correctional officers knowingly disregarded a serious risk of harm by cuffing him behind his back.

To the extent that Plaintiff complains that he was deprived of a cane, Defendants have submitted

evidence demonstrating that Plaintiff’s cane was taken during a security incident because Plaintiff

was acting aggressively and was not complying with officers. Further, Defendants’ evidence

shows that Plaintiff was escorted to segregation by two officers who helped support him. Video

surveillance evidence confirms that two officers escorted Plaintiff and that Plaintiff had no limp

or other sign of difficulty in walking with the officers without a cane or wheelchair. Plaintiff’s

contention that his hip gave out as a result of the escort is refuted by the videotapes, officer

declarations, and Plaintiff’s own grievance which stated that his hip gave out and he fell while he

was in a cage following his suicide attempt. Finally, Defendants have presented evidence that

Defendant Hatley could not have been deliberately indifferent for Plaintiff’s placement in a suicide

cell for five days without medication because Hatley was not working when Plaintiff was placed

on suicide watch, because correctional officers lack the authority and ability to interfere with

medication, and that SIB status was ordered by a staff psychologist.

Plaintiff has failed to come forward with evidence to establish that a genuine dispute of

material fact exists on the issue of deliberate indifference and, therefore, summary judgment will

be granted in favor of Defendants on his deliberate indifference claims.

(5) Retaliation

Plaintiff alleges that Defendants Ingram and Krantz subjected him to violence on March 8,

2017 in retaliation for telling officers that they should have had officers at their posts, that

Defendant Hatley retaliated against Plaintiff by placing him in a suicide cell for five days, that

Defendants Ingram, Laur, and McFaulds retaliated against Plaintiff by informing inmates about

Plaintiff’s crime, and that Defendant Swink intentionally violated Plaintiff’s due process

classification assignment in retaliation for Plaintiff’s grievance complaining about interference

with the mail.

With regards to Plaintiff’s claim of retaliation by Ingram and Krantz, Defendants presented

evidence that their use of force on March 8 was reasonable and in response to Plaintiff’s aggressive

and non-complying behavior. Plaintiff has failed to come forward with any evidence that Ingram

and Krantz violated his constitutional rights and that retaliation was not a but-for cause of their use

of force. See Section (3), supra; Woods, 60 F.3d at 1166 (requiring but-for causation for retaliation

claims). With regards to suicide watch, Defendants have presented evidence that Defendant Hatley

had nothing to do with Plaintiff’s placement on suicide watch and that a psychologist ordered SIB

status due to Plaintiff’s suicide attempt and not because of anything to do with Defendant Hatley.

See Section (4), supra. Plaintiff’s claim that Defendants Ingram, Laur, and McFaulds retaliated by

informing other inmates about Plaintiff’s “crime” is too vague and conclusory to establish

retaliation. Plaintiff has not demonstrated the existence of a genuine dispute of material fact that

retaliation occurred. With regards to classification, even if the claims against Defendant Swink

were exhausted, Defendant Swink would be entitled to summary judgment because Defendants

have presented evidence that Defendant’s classification was dictated by the Plaintiff’s progress in

the RDU program and was not individually determined by Swink, that Swink was unaware of

Plaintiff’s grievance about the mail and, even if he had been aware, it would not have made any

difference in Plaintiff’s classification.

Plaintiff has failed to present evidence that creates a genuine dispute of material fact on

any of the foregoing and, accordingly, Defendants will be granted summary judgment on

Plaintiff’s retaliation claims.

(6) Sovereign Immunity

Plaintiff’s claims for damages against Defendants in their official capacities are barred by

sovereign immunity. See Almone, 478 F.3d at 106; Hutto, 773 F.3d at 549. Therefore, Defendants’

Motion for Summary Judgment for damages will be granted on that basis.

(7) Qualified Immunity

Defendants argue that qualified immunity shields them from damages in their individual

capacities because Plaintiff has not established a clearly established violation of law. With respect

to the use of force, Plaintiff has failed to show that Defendant Ingram’s use of force against an

aggressive and non-complying inmate was prohibited by clearly established law. Nor has he shown

that officers were required to provide Plaintiff with a wheelchair or handcuff him in front of his

body despite the lack of a serious medical need, or that any retaliation occurred. Therefore all

Defendants are entitled to qualified immunity except Defendant Laur on the claim of excessive

force.

IV. PENDING MOTION

Plaintiff has filed a Motion to Alter or Amend the Order granting Defendant Hayes’ Motion

for Summary Judgment. (Doc. No. 66). He argues, inter alia, that Hayes’ Motion should have been

denied because a bone specialist said Plaintiff needed a left hip replacement, Hayes overlooked

the bone specialist’s orders that Plaintiff not be housed upstairs, that Plaintiff was placed in fear

of bodily injury, stalking, and harassment, and that Plaintiff never got to see Defendant Hayes

about the recommended hip replacement. Plaintiff argues that the prison system’s chief medical

officer can be liable for failing to correct the failures of medical tracking that resulted in surgery

in October 2017 that was approved in 2010 and 2015 by a bone specialist.

Defendant Hayes has filed a Response in opposition to Plaintiff’s Motion, (Doc. No. 78),

arguing that the deadline for appealing or to file a motion to alter or amend has expired under Rule

59(e) of the Federal Rules of Civil Procedure and Rule 4(a) of the Federal Rules of Appellate

Procedure. The latest day Plaintiff could have requested an extension of time to appeal under Rule

4 would have been August 22, 2019, and he failed to do so.

Plaintiff does not dispute Defendant Hayes’ arguments that his Motion was untimely filed

pursuant to Rules 4 and 59, and he does not attempt to demonstrate excusable neglect or good

cause, or any other exception to the applicable time limits. Therefore, Plaintiff’s Motion to Alter

or Amend will be denied.

To the extent that Plaintiff seeks additional relief, i.e., stay of docket entries 14, 54, 55, 56,

and 60, and striking docket entries 62 and 63, the Motion will be denied because Plaintiff has

stated absolutely no reason why any such relief should be granted.

V. CONCLUSION

Based on the foregoing, Defendants’ Motion for Summary Judgment is granted in part and

denied in part, Plaintiff’s Motion to Alter or Amend is denied, and the case will proceed to trial on

Plaintiff's claim of excessive force against Defendant Laur in his individual capacity.

IT IS, THEREFORE, ORDERED that:

1. Defendants’ Motion for Summary Judgment, (Doc. No. 71), is GRANTED in part and

DENIED in part as stated in this Order.

2. Plaintiff's “Motion to Alter Amend the Judgment & Deposition Before Action or

Pending Appeal & Rule 27 Motion to Strike [Doc. 62-63] Motion to Stay [Doc. 14,

Doc. 42, Doc. 55-56, 60,” (Doc. No. 66), is DENIED.

3. This case will be set for trial on the excessive force claims against Defendant Laur in

his individual capacity in a separate order.

Signed: January 14, 2020

Frank D. Whitney é

Chief United States District Judge ~“#*’

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