McNeill v. Johnson

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:18-cv-188-FDW

JAMES C. McNEILL, )

)

Plaintiff, )

)

vs. ) ORDER

)

MARQUHNE BENJAMIN JOHNSON, et al., )

)

Defendants. )

__________________________________________)

THIS MATTER comes before the Court on Motions for Summary Judgment filed by three

Defendants, (Doc. Nos. 36, 37), and on Plaintiff’s Motion to Strike, (Doc. No. 44).

I. BACKGROUND

Pro se incarcerated Plaintiff’s Complaint, (Doc. No. 1), passed initial review on his claim

that, while he was incarcerated at the Lanesboro Correctional Institution,1 Defendants Cedric

Graham, Marquhne Johnson, Karim Lane, Susan Morrison, and Jackie Yang used excessive force

and/or failed to intervene, and that Defendants Kevin White and Alfred Williams violated his due

process rights with regards to a disciplinary proceeding. Defendant Johnson has not been served.

(Doc. No. 22). Defendant Yang has moved for summary judgment on the claim of excessive

force/failure to intervene, and Defendants White and Williams have moved for summary judgment

on Plaintiff’s due process claims. Defendants Graham, Johnson, Lane, and Morrison have not

sought summary judgment on Plaintiff’s excessive force/failure to intervene claim.

(1) Complaint (Doc. No. 1)

1 Plaintiff presently resides at the Polk C.I.

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Plaintiff declared a medical emergency for pain on the evening of October 27, 2017, and

was escorted to the Anson Unit nurse’s station, while wearing a black box and waist chain, at

around 2:00 AM on October 28, 2017. Nurse Leach was trying to assist Plaintiff with a prescription

but was having trouble with her computer. Nurse Leach asked Defendant Yang for her help with

Plaintiff’s prescription order that had expired. Instead of helping Leach, Yang began shouting at

Plaintiff for looking at his medical information on the computer screen, shouting “No he is not

here to check on his medicine!” (Doc. No. 1 at 7). Defendants Johnson, Graham, and Morrison

were inside the nurse’s station with Defendant Yang, and Defendant Lane was outside the medical

station door. Plaintiff responded to Yang by telling her that he came to medical for pain relief and

check on the status of his pain medication and that, because all the information on the computer

screen concerned him, he should have access to that information. Yang began shouting and

threatening to “put [Plaintiff] out.” (Doc. No. 1 at 7).

After Yang threw Plaintiff out of the medical station, Morrison grabbed Plaintiff’s arm but

was unable to escort Plaintiff because Graham and Johnson came towards Plaintiff and began

grabbing and savagely snatching Plaintiff, jerking and shoving him out of the medical station as

he was fully restrained and put up no resistance. Johnson “took charge” while the others crowded

around and egged him on “like a thirsty mob fiending to see blood and guts.” (Doc. No. 1 at 7).

Johnson, who is six feet tall and weighs 250 pounds, threw Plaintiff into the wall, slamming his

head so hard that Plaintiff almost lost consciousness. In full view of the surveillance camera,

Correctional Officers Graham, Lane, and Morrison, and “Nurses” looked on as Johnson wrapped

both hands around Plaintiff’s throat and began savagely choking him. (Doc. No. 1 at 8). Johnson

again threw Plaintiff into the wall and seemed frustrated that Plaintiff would not pass out. Johnson

began punching Plaintiff’s face repeatedly, again choked him with both hands, and threw him into

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an empty sergeant’s office. Graham, Lane, and Morrison followed him. There are a few others

who video surveillance can identify as being “excited conspiratorial spectators.” (Doc. No. 1 at 8).

Once inside the sergeant’s office, Johnson began assaulting Plaintiff with Graham, Lane,

and Morrison egging him on. Johnson choked Plaintiff on top of the sergeant’s desk, slammed him

to the floor and choked him with both hands, then began punching his face and head. No prison

staff member tried to intervene even though Plaintiff was helpless to defend himself. Plaintiff never

spit on anyone or attempted to like “defendant” falsely alleged. (Doc. No. 1 at 9). Plaintiff did not

possess a weapon, attempt to reach into his pants, or try to spit.

The assault stopped when Sergeant Griffin came into the office and picked Plaintiff up off

the ground. Plaintiff told them to take him to medical. Instead, they took him back to the Anson

Unit medical station to Nurse Yang. Plaintiff was woozy and had “partial memory loss

temporarily” and cannot tell who was present besides Griffin, Morrison, and Lieutenant White.

(Doc. No. 1 at 9). Plaintiff’s eye was already swelling and he had a cut on his face. He was dizzy

and had severe back pain. Yang had a “conflict of interest” so she did not treat Plaintiff

professionally. (Doc. No. 1 at 10). She gave him an ice pack for his eye. Griffin and Morrison

escorted Plaintiff back to his cell. His neck was swollen and he was still wheezing somewhat.

Plaintiff wrote a statement an hour later while he was still dizzy and “fighting head trauma.”

(Doc. No. 1 at 10). He was told the statement was for an incident report and Plaintiff’ requested

that video be reviewed for the blatant assault. Plaintiff requested that Herring view the video so

that he could terminate the employment of all the staff who participated. However, he failed to

take corrective action. Instead, he immediately promoted Johnson to lieutenant and “helped to

cover up” the assault. (Doc. No. 1 at 10).

Lieutenant White, the investigating officer, never read Johnson’s statement so Plaintiff

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never knew he was alleging that Plaintiff was attempting to reach into his pants for a homemade

knife or was acting like he was going to spit on him. White and Johnson came to Plaintiff’s cell

the night after the incident and only had a disciplinary rights form. He did not give Plaintiff an

opportunity to write a statement or have witness statements. White said he was going to use

Plaintiff’s incident report statement from immediately after the incident. White did not read

Graham, Morrison, Johnson, Cane, Yang, or Leach’s statements to Plaintiff. White did say,

however, that he viewed the video and that the excessive force was blatant, and Johnson could be

seen viciously choking and punching Plaintiff’s face while Plaintiff was handcuffed, chained, and

acting non-aggressive. However, White still lied and helped cover up the malicious assault by

recommending that Plaintiff receive bogus charges. Anson Unit Manager William Horne

collaborated as charging officer on the bogus charges, by serving them on Plaintiff on November

3, 2017. The videotape footage exposes these lies and shows that the assault was unjustified.

White, Horne, and Williams collaborated to cover up Johnson’s actions and save his job while

framing Plaintiff on bogus charges.

On November 8, 2017, Plaintiff pled not guilty at the disciplinary hearing before

Disciplinary Hearing Officer (“DHO”) Alfred Williams. Williams never read any statements or

evidence and said that he was sending the disciplinary package back for video footage and

dismissed Plaintiff without having a hearing on the charges. An hour later, a correctional officer

brought Plaintiff an Offense and Disciplinary Report and Record of Hearing saying that Williams

found him guilty and imposed solitary confinement and loss of privileges which extended his long-

term punitive segregation. Williams states in the record that Correctional Officer Bookless wrote

a statement that she witnessed Plaintiff being combative with medical staff and threatened to

assault Johnson with a homemade knife. Plaintiff also never requested a statement from Nurse

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Cherie, who does not work at Lanesboro, and Bookless was not working the night of the incident

and therefore could not have made a witness statement. There was no hearing on the charges from

Johnson so it is impossible for Plaintiff to have stated what is contained in the Record of Hearing.

Plaintiff suffers daily pain and trauma from the assault both mentally and physically. His

back pain and neck pain have become worse and he takes narcotic pain medication. He has blinding

headaches, periods of blurred vision, nerve pain in his arms and thighs, and extreme lower back

pain. His mental trauma includes nervousness, fear, anxiety, depression, and hopelessness.

Plaintiff seeks compensatory and punitive damages, and a change in prison policy such that

any staff who fail to intervene when assault of a restrained inmate is occurring are immediately

fired.

(2) Motions for Summary Judgment

(A) Defendant Yang (Doc. No. 36)

Defendant Yang argues that she did not violate Plaintiff’s Eighth Amendment rights

because she is a public employee, not a law enforcement officer, and therefore is not subject to

the standard of bystander liability and had no duty to intervene. Further, she did not act under the

color of state law pursuant to § 1983 because the alleged assault is not related to the exercise of

her medical duties as a nurse. Finally, Plaintiff failed to establish Yang’s personal involvement in

the incident. Yang has attested to the fact that she was not aware of any assault on Plaintiff, so she

cannot be held responsible for actively participating in the assault or for failing to intervene.

(B) Plaintiff’s Response (Doc. Nos. 43, 48)

Plaintiff was informed of the legal standard applicable to motions for summary judgment

and of the importance of responding to Defendant Yang’s Motion. See (Doc. No. 39).

Plaintiff filed a Response in which he asks the Court to stay Yang’s Motion until discovery

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issues are resolved.2 (Doc. No. 43).

Plaintiff filed a second Response, (Doc. No. 48), arguing that Defendant Yang was

deliberately indifferent to a serious medical need because he had obvious injuries when he was

brought to the Anson medical station after the use of force, and all she did was to give him an ice

pack for his swollen eye.

(C) Defendant Yang’s Reply (Doc. No. 45)

Defendant Yang argues that Plaintiff’s request for a stay be denied because video footage

of the alleged use of force will have no impact on the Court’s determination of Yang’s liability

under § 1983. Any video footage depicting Yang’s alleged failure to act is irrelevant because Yang

is not a law officer and therefore is not subject to bystander liability and any failure to act is not

related to Yang’s medical duties as a nurse and thus would not constitute state action or action

under the color of state law. Plaintiff is not suing Yang for her alleged role in the assault or for

medical treatment. Consequently, video footage of Yang’s alleged failure to act has no impact on

whether she may be held liable under § 1983.

(D) Defendants White and Williams (Doc. No. 37)

Defendants White and Williams argue that Plaintiff cannot show he was entitled to due

process before being disciplined so nothing about the investigation and discipline for the October

28 incident so they could not have violated Plaintiff’s due process rights. Plaintiff’s liberty interests

were not implicated by Defendants’ alleged conduct so he has no due process rights with regards

to the disciplinary hearing at issue. Plaintiff’s liberty interests have not been impacted. He lost 30

days good time credits, 20 days of Restrictive Housing for Disciplinary Purposes (“RHDP”), 70

2 Plaintiff filed a Motion to Compel Discovery, (Doc. No. 40), that was pending at the time he filed his

Response to Defendant Yang’s Motion for Summary Judgment. (Doc. No. 40).

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hours of extra duty, loss of canteen and phone privileges for 90 days, and three months limited

withdrawals from inmate trust fund account. Plaintiff is sentenced to life with no possibility of

parole or early release. North Carolina sentence reduction credits do not shorten a life sentence but

merely apply to custody status, parole eligibility and potential commutation, so lost good time has

no impact on Plaintiff’s sentence. Loss of privileges and the assignment of extra duty in prison do

not implicate an inmate’s liberty interests. There is no basis to conclude that 70 hours of extra

duty, loss of canteen and phone for 90 days, or suspension of withdrawals from his trust account

are atypical and significant. Further, temporary reassignment to RHDP does not implicate liberty

interest because it is not significant and atypical compared to his conditions of confinement upon

incarceration because it is not significantly more onerous than close custody general pop which is

Plaintiff’s regular assignment. The RHDP was also a very short 20-day period and did not have

any collateral consequences to his life sentence

Even if a liberty interest existed, Defendants did not violate Plaintiff’s due process rights.

Plaintiff alleges that Defendant White failed to inform him of the allegations, read him the officer’s

witness statement or give him an opportunity to write a statement. However, due process does not

require these procedures be provided and/or other department employees (not White) are

responsible for providing this process. While due process requires advance written notice of

charges, Defendant White was never tasked with providing that notice. Horne provided advance

written notice of the charges on November 3, five days before the November 8 disciplinary

hearing. Defendants are not aware of any case in the prison context saying that due process requires

that witness statements be read to the inmate by an investigating officer or that an investigator take

a statement from the accused. Even if this was required, the DHO is tasked with providing those

procedures at the disciplinary hearing, not White.

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Defendant Williams argues that he did not act intentionally so did not violate Plaintiff’s

rights. Due process is not implicated by a negligent act of an official that caused unintended loss

to life, liberty, property. There is no evidence that Defendant Williams intentionally denied

Plaintiff of any procedural processes. The evidence shows that Williams intended to ensure that

Plaintiff received a full disciplinary hearing, including viewing the requested video evidence. He

unintentionally sent back the wrong incident for reinvestigation and therefore did not view the

video before finding Plaintiff guilty. This was understandable confusion because Williams

oversaw two hearings involving Plaintiff on identical charges for two separate incidents in the

same month on similar dates (October 18 and 28). Williams did not intentionally deprive Plaintiff

of due process so he cannot be liable under § 1983.

Defendants argue that they are entitled to sovereign immunity on the claims against them

in their official capacities and that there is no evidence to support punitive damages.

(E) Plaintiff’s Response (Doc. No. 44)

Plaintiff was informed of the legal standard applicable to motions for summary judgment

and of the importance of responding to Defendants White and Williams’ Motion. See (Doc. No.

42).

Plaintiff filed a Motion to Strike Defendants White and Williams’ Motion for Summary

Judgment in which he states that he requested some of their summary judgment exhibits in

discovery but never received them, refers to his Motion to Compel Discovery, and asks that these

Defendants’ Motion for Summary Judgment be stricken. Plaintiff argues that investigations were

conducted on February 7, 2019, March 6, 2019, and May 22, 2019 by Sergeant Regina McInnis,

Lieutenant Crystal Atkinson and Captains David Aaron and Miranda Mimms. The investigators

concluded that, based on the video footage, the use of force by Defendant Johnson was physical

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brutality and that Plaintiff did not pose a physical threat at any time. Plaintiff appears to argue that

Defendant Williams refused to view the videotape and that the “deliberate acts” of Defendants

White and Williams contributed to his placement on Restrictive Housing for Control Purposes

(“RHCP”) for 180 days, which is “long term punitive segregation” that can become permanent.

(Doc. No. 44 at 1). Plaintiff asks that the Motion for Summary Judgment filed by Defendants

White and Williams be stricken and that judgment be granted in Plaintiff’s favor.

(F) Defendants White and Williams’ Reply (Doc. No. 53)

Defendants White and Williams note that Plaintiff clarified in his Response that his due

process claims are based on his placement in RHCP, not RHDP. Summary judgment in

Defendants’ favor is still warranted after taking into account this clarification because Plaintiff’s

placement in RHCP did not affect his liberty interests, and thus, no constitutional due process

rights apply. RHCP does come with certain restrictions, but RHCP restrictions are not atypical and

substantial compared with Plaintiff’s typical conditions of confinement in close custody. Plaintiff

cannot establish that he was entitled to due process before being placed in RHCP because the

discipline imposed did not affect his liberty interests. Further, the Department followed its

procedures when placing Plaintiff into RHCP, which was done due to Plaintiff’s assault on another

inmate on September 14, 2017, and his October 28, 2017 charges for threatening to harm staff and

for profane language. Plaintiff’s referral to RHCP on January 8, 2018 was for the protection of

staff and other inmates. Even if the Defendants’ involvement in the investigation and discipline of

the October 28 incident was partially responsible for his placement into RHCP, this placement did

not impact a liberty interest and therefore cannot support a finding of a Fourteenth Amendment

violation.

(G) Plaintiff’s Surreply (Doc. No. 57)

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Plaintiff states in his verified Surreply that he was treated as RHCP as soon as he was

served paperwork on November 9, 2017. A referral for placement on RHCP resulted from the

October 28, 2017 incident’s disciplinary investigation by Defendants White and Williams. The

RHCP solitary confinement and segregation restrictions were not lifted until May 23, 2018 when

Plaintiff was transferred. The September 14, 2017 assault on another inmate was actually self-

defense where Plaintiff was attacked by two inmates with knives. Plaintiff was hospitalized with

a life-threatening stab wound to the neck. RHCP and close custody in the general population are

not the same. RHCP does not have a telephone, television, or food and hygiene privileges from

canteen, which close custody general population does allow. Close custody general population

inmates are outside their cells with yard and dayroom privileges, they can attend religious services,

chow hall, gym, have contact visitations, and order food packages. RHCP inmates do not have

access to any of the foregoing and are confined on a Segregated Housing Unit (“SHU”) on solitary

confinement. RHCP is the equivalent of supermax punitive segregation or “H-Con” and it is

misleading for Defendants to compare RHCP to close custody general population status. (Doc. No.

57 at 2).

(3) Evidence3

(A) Affidavit of Jackie Yang, R.N. (Doc. No. 36-1)

Defendant Yang is a Registered Nurse who was licensed in North Carolina at the relevant

time. From September 25, 2017 to December 22, 2018, Yang worked as an independent contractor

for a healthcare staffing service, Cell Staff LLC at Lanesboro C.I. Yang does not have copies or

access to any Lanesboro nursing rosters. During the time in question, Yang was not employed by,

3 This section is not exhaustive. The Court takes judicial notice of the applicable NCDPS Policy & Procedure

and Lanesboro SOPs. See Fed. R. Ev. 201.

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and did not work as an independent contractor for, Lanesboro C.I., the State of North Carolina,

NCDPS, or any other agency of the State of North Carolina. Yang does not have copies of, or

access to, any policies, procedures manuals, or employment documents belonging to any state

agency. She was not a law enforcement officer or prison official and has not had relevant training

as a law officer or prison official. During the times in question, she did not act as a law officer or

prison official at Lanesboro.

On or about October 27 or 28, 2017, Yang was working in the nursing unit at Lanesboro

when two correctional officers brought Plaintiff to the nursing unit. Another nurse was talking to

Plaintiff when Plaintiff started yelling and cursing at Yang. Plaintiff then started moving towards

the nursing computers, which is not allowed. Yang asked the correctional officers to escort

Plaintiff out of the nursing unit, which they did. Yang did not ever shout back at Plaintiff or

threaten to put him out. Later on, after the correctional officers brought Plaintiff back into the

nursing unit, Yang gave Plaintiff an ice pack and Tylenol while he continued to curse at her.

Yang never saw or heard of any correctional officer assaulting Plaintiff, including choking,

throwing, or punching him. Yang does not have knowledge of any surveillance tape, records, or

written statements relating to an assault on Plaintiff by correctional officers. Yang did not act

wrongfully towards Plaintiff or witness anyone else treating Plaintiff wrongfully.

(B) Declaration of Edward Gazoo (Doc. No. 38-2)

Gazoo is Program Director at Lanesboro. As such, his duties include the classification of

inmates into the appropriate custody level. Gazoo has access to, and reviewed, Plaintiff’s record

of custody. Gazoo also has “knowledge of the conditions associated with each of the Department’s

custody classifications at Lanesboro….” (Doc. No. 38-2 at 1).

Plaintiff was convicted of murder and sentenced to life in 2014. He was classified into

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close custody in the general population upon admission to the Department. Plaintiff has never been

reclassified to a lower custody level since his admission into the Department in 2014.

The Lanesboro Standard Operating Procedures (“SOP”) governing general custody at

Lanesboro, provide that inmates in Close Custody at Lanesboro:

a. Are assigned to a Unit, POD and cell, and are only authorized to be in their assigned

areas;

b. Are provided with sanitary cells that they are required to keep sanitary;

c. Have a sink and toilet in their cells;

d. Are required to be in their cells each night from 11:00 PM or 12:00 AM to no longer

than 8:00 AM depending on the unit;

e. Are required to be in their cells for counts and lockdowns;

f. Are generally allowed to shower daily;

g. Take their meals in the dining hall;

h. Are provided opportunities to use the gym, dayroom, canteen, and outdoor recreation

yard;

i. Have opportunities for work or program assignments;

j. Are allowed to have radios;

k. Have access to necessary medical care;

l. Are allowed to have limited personal possessions.

(Doc. No. 38-2 at 2-3).

The Department’s policies and procedures respecting RHDP inmates are that they:

a. Stay in cells that are maintained in sanitary conditions;

b. Have a sink and toilet in their cells;

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c. Have the opportunity to shave twice a week and shower at least three times per week;

d. Have access to necessary medical care;

e. Are allowed one hour per day, five days per week to exercise outside the cell;

f. Have the same mail privileges as offenders in the general population;

g. Are allowed to receive visitors, limited to one hour per visit in the non-contact visitor

area;

h. Are allowed to access up to $10 per week from their trust fund account;

i. May have personal property including authorized religious materials, books, and

magazines not exceeding two cubic feet;

j. Receive their meals in their cells;

k. Have access to cell study, portable library, and pastoral care;

l. Receive daily visits from the officer in charge, daily visits from a qualified health care

staff member (unless medical attention is needed more frequently), and visits from

program staff upon request by staff or other offenders;

m. Are not permitted canteen orders except for stamps, over the counter medications, and

essential hygiene items; and

n. Are not permitted to use a radio and earplugs/earphones.

(Doc. No. 38-2 at 3-4).

(C) Declaration of Kevin White (Doc. No. 38-6)

Defendant White was a Correction Lieutenant at Lanesboro at the relevant times. Inmates

in the Department are required to follow the Department’s rules and regulations. Inmates are

subject to disciplinary action if they have violated the Department’s rules and regulations.

Under the Department’s disciplinary policy, an Investigating Officer is assigned to

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investigate allegations of inmate misconduct. The Investigating Officer is required to complete the

investigation and submit the results, including a recommendation for whether the inmate should

be charged with a disciplinary offense. After an investigating officer makes a recommendation,

their role in the disciplinary process is over.

Following the Investigating Officer’s recommendation, another officer will review the

investigation and decide whether to charge the inmate. If the inmate is charged, the charging officer

is responsible for providing 24-hour written notice of the specific charges to the inmate or for

obtaining a waiver of the notice.

On October 28, 2017, White was assigned as the Investigating Officer for the report that

Plaintiff violated Department rules and regulations by threatening to assault and spit on staff and

my making movements to do so. During the investigation, White provided Plaintiff with a DC-

138A form that explained his rights. White also collected a written statement from Plaintiff, which

Plaintiff wrote immediately after the incident, before White had been assigned as Investigating

Officer. White gave Plaintiff the opportunity to write an additional statement but Plaintiff said that

he wanted to use his prior statement for the disciplinary investigation. In his written statement,

Plaintiff had the opportunity to request that statements from other witnesses be gathered, that live

witnesses be present at the hearing, and that physical evidence be reviewed at the hearing. Plaintiff

only asked that video footage of the incident be reviewed at the hearing. White reviewed statements

from approximately seven employees who were involved in the incident, that were written

immediately after the incident.

Based on his investigation, White recommended that Plaintiff be charged with a B18

offense for threatening to stab and spit on staff and a C02 offense for calling a nurse names.

Following the recommendation, Unit Manager William Horne reviewed White’s Report

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and made the decision to charge Plaintiff with the B18 and C02 offenses. Unit Manager Horne

was responsible for providing Plaintiff with 24-hour written notice of these charges.

(D) Declaration of Alfred Williams (Doc. No. 38-9)

Defendant Williams was the DHO assigned to hear a B18 and C02 disciplinary charge

against Plaintiff based on alleged conduct occurring on October 18, 2017. Williams was also the

DHO assigned to hear a B18 and C02 disciplinary charge against Plaintiff based on alleged conduct

occurring on October 28, 2017. Hearings on the October 18 and 28 incidents were scheduled the

same day, November 8, 2017.

For the October 28 incident, Williams noted that Plaintiff had requested review of video

evidence but Williams did not have that evidence. Williams therefore sent those charges back for

reinvestigation to obtain the video evidence. However, Williams confused the October 18 and 28

incidents. As a result of his confusion, he unintentionally sent back for reinvestigation of the

charges for the October 18 incident instead of the October 28 incident. Williams’ confusion also

resulted in finding Plaintiff guilty of the October 28 incident and charges without reviewing the

requested video.

Reinvestigation of the October 18 incident found that video evidence had never been

requested. On November 13, 2017, Williams conducted another hearing on the October 18 incident

and found Plaintiff guilty. Williams only discovered the mistake and confusion between the

October 18 and 28 charges and hearing when responding to this lawsuit.

Williams never intended to discipline Plaintiff for the October 28, 2017 incident without

first reviewing the video evidence that he requested.

II. LEGAL STANDARDS

(1) Summary Judgment

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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)).

As a general rule, when one party files a motion for summary judgment, the non-movant

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cannot merely rely on matters pleaded in the complaint, but must, by factual affidavit or the like,

respond to the motion. Celotex, 477 U.S. at 324; Kipps v. Ewell, 538 F.2d 564, 566 (4th Cir. 1976);

Fed. R. Civ. P. 56(e). However, a verified complaint, like the Amended Complaint that Plaintiff

filed, is the equivalent of an opposing affidavit for summary judgment purposes, when the

allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820,

823 (4th Cir. 1991); Davis v. Zahradnick, 600 F.2d 458, 459–60 (4th Cir. 1979) (holding that the

factual allegations contained in a verified complaint establish a prima facie case under 42 U.S.C.

§ 1983, so as to preclude summary judgment).

(2) Due Process

The Fourteenth Amendment’s Due Process Clause provides that no person shall be

deprived of “life, liberty, or property, without due process of law.” U.S. Const. Amend XIV. The

first inquiry in any due process challenge is whether the plaintiff has been deprived of a protected

interest in property or liberty that was accomplished by state action. Tigrett v. The Rector and

Visitors of the Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002); Stone v. Univ. of Md. Med. Sys.

Corp., 855 F.2d 167, 172 (4th Cir. 1988). “Unless there has been a ‘deprivation’ by ‘state action,’

the question of what process is required and whether any provided could be adequate in the

particular factual context is irrelevant, for the constitutional right to ‘due process’ is simply not

implicated.” Stone, 855 F.2d at 172. Moreover, “the Due Process Clause is simply not implicated

by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”

Daniels v. Williams, 474 U.S. 327, 328 (1986). A plaintiff does not have a federally protected

liberty interest in any particular housing or classification unless it exceeds the scope of his original

sentence and imposes an atypical and significant hardship in relation to the ordinary incidents of

prison life. See Sandin v. Conner, 515 U.S. 472 (1995); Gaston v. Taylor, 946 F.2d 340, 343 (4th

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Cir. 1991) (en banc) (“[C]hanges in a prisoner’s location, variations of daily routine, changes in

conditions of confinement (including administrative segregation) and the denial of privileges …

are necessarily functions of prison management that must be left to the broad discretion of prison

administrators to enable them to manage prisons safely and efficiently.”).

(3) 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).

III. DISCUSSION

(1) Defendant Yang

Plaintiff alleges in his unverified Complaint that Defendant Yang failed to intervene in an

attack he suffered at the hands of Defendants Graham, Lane, and Morrison.

Defendant Yang has presented evidence that she was a public employee, not a law

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enforcement officer, who had no duty to intervene, and that she did not act under the color of state

law pursuant to § 1983 because the alleged assault is not related to the exercise of her medical

duties as a nurse, and that Plaintiff failed to establish Yang’s personal involvement in the incident.

In response, Plaintiff sought a stay pending resolution of discovery issues and argues that

Yang was deliberately indifferent to a serious medical need.

Plaintiff’s attempt to revive a deliberate indifference claim against Yang, which was

dismissed on initial review, will be rejected. Plaintiff’s Motion to Compel has now been denied

and there is no justification for staying the case. Plaintiff has failed to refute Yang’s evidence that

she was not a law enforcement officer, had no duty to intervene, did not act under the color of

state law, and had no personal involvement in the excessive force incident. Plaintiff has not

demonstrated the existence of a genuine dispute of material fact with regards to Defendant Yang’s

alleged failure to intervene, and therefore, Defendant Yang’s Motion for Summary Judgment will

be granted.

(2) Defendant White

Plaintiff appears to allege in his unverified Complaint that White only gave him a

disciplinary rights form the night after the incident, that White did not give Plaintiff the

opportunity to write a statement or have witness statements and said that he was going to rely on

the statement that Plaintiff wrote immediately after the incident, that White did not read Graham

Morrison, Johnson, Cane, Yang, or Leach’s statements to Plaintiff, and White recommended that

Plaintiff receive charges even though he admitted that the video showed blatant excessive force.

Defendant White presented evidence that he provided the procedure required by policy and

Defendant White was not tasked with providing Plaintiff with 24-hour written notice. Defendant

White is not aware of any cases in the prison context saying that due process requires that witness

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statements be read to the inmate by an investigating officer or that an investigator take a statement

from the accused and, even if this was required, it would be the responsibility of the DHO rather

than White. Defendant White further submitted evidence that he provided Plaintiff with the

opportunity to submit a statement in addition to the original statement he completed immediately

after the incident and to call witnesses, but Plaintiff chose to rely on his original statement and the

only evidence he requested was video surveillance footage. This includes the Statement by

Witness that Plaintiff completed at 23:20 on October 28, 2017 that sets forth requests, including

that written statements be gathered on his behalf, that live witnesses be present at the hearing, and

for staff assistance at the hearing. The only requested checked by Plaintiff is that the surveillance

footage be reviewed at his hearing. (Doc. No. 38-8 at 13).

Plaintiff has failed to rebut the evidence presented by Defendant White. Plaintiff has failed

to demonstrate the existence of a genuine dispute of material fact with regards to Defendant

White’s alleged due process violation. Therefore, Defendant White will be granted summary

judgment.

(3) Defendant Williams

Plaintiff alleges in his unverified Complaint that Defendant Williams said he was sending

the disciplinary package back to get video of the incident and then dismissed him without hearing

the charges. However, an hour later, a correctional officer brought Plaintiff an Offense and

Disciplinary Report and Record of Hearing in which Williams found him guilty and imposed

solitary confinement without reading any statements or evidence, and referred to Nurse Cherie,

who was not working at the time of the October 28 incident.

Defendant Williams has submitted evidence about the conditions for close custody general

population and RHCP custody and argues that no due process was required because his brief stay

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in RHCP did not impose an atypical or significant hardship on Plaintiff. Williams further presented

evidence admitting that he mistakenly failed to view the videotape for the October 28 incident due

to a mix-up with identical charges on a similar date, October 18. Williams has presented evidence

that he never intended to discipline Plaintiff for the October 28, 2017 incident without first

reviewing the video evidence that Plaintiff requested, and that any due process violation was due

to an error by him and was not intentional.

Plaintiff has filed a sworn Response in which he states that the solitary confinement

restrictions lasted 194 days, that RHCP and close custody general population are not the same, and

that RHCP is more analogous to supermax punitive segregation.

Although the parties dispute whether RHCP presents a significant and atypical hardship

such that due process is required, the Court need not resolve that issue. Defendant Williams has

come forward with evidence admitting that he made an error in the disciplinary proceeding but

that the error was unintentional and due to the existence of identical charges on a similar date that

was also being heard that day. Plaintiff has failed to rebut Defendant Williams’ assertion that, if

any due process violation occurred, it was unintentional. See Daniels, 474 U.S. at 328 (“the Due

Process Clause is simply not implicated by a negligent act of an official causing unintended loss

of or injury to life, liberty, or property.”). Plaintiff has failed to demonstrate the existence of a

genuine dispute of material fact that Defendant Williams purposefully deprived him of due process

rights. Therefore, Defendant Williams’ Motion for Summary Judgment will be granted.

(4) Official Capacity Claims

Defendants White and Williams further argue that they should be granted summary

judgment on the claims against them in their official capacities for damages because they are

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

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White and Williams’ Motion for Summary Judgment for damages is granted on that basis.

IV. CONCLUSION

Based on the foregoing, Defendants Yang, White, and Williams’ Motions for Summary

Judgment are granted and Plaintiff's Motion to Strike is denied. This case will be set for trial on

the remaining claims of excessive force and failure to intervene in a separate order.

IT IS, THEREFORE, ORDERED that:

1. Defendant Yang’s Motion for Summary Judgment, (Doc. No. 36), is GRANTED.

2. Defendants White and Williams’ Motion for Summary Judgment, (Doc. No. 37), is

GRANTED.

3. Plaintiffs Motion to Strike, (Doc. No. 44), is DENIED.

4. The Clerk is respectfully instructed to use reasonable efforts to locate a volunteer

lawyer to assist Plaintiff at trial pursuant to 3:19-mc-13.

Signed: February 3, 2020

Frank D. Whitney

Chief United States District Judge □□□□□

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