Fair v. Stevens

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:18-cv-00196-MR

MICHAEL ODELL FAIR, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

BERRY STEVENS, )

)

Defendant. )

________________________________

THIS MATTER comes before the Court on Defendant’s Motion for

Summary Judgment [Doc. 50]. Also pending is Plaintiff’s “Notice of Motion

for Declaration to Support Amend Response Subpoena or Call Witnesses or

Order Statements Concerning 5:18-cv-196-FDW Case” [Doc. 59] that was

docketed as a Motion for Leave to File Surreply.

I. BACKGROUND

The incarcerated Plaintiff, proceeding pro se, filed this action pursuant

to 42 U.S.C. § 1983. The Complaint [Doc. 1] addresses an incident that

allegedly occurred at the Lincoln County Courthouse while Plaintiff was a

pretrial detainee in May 2018. The Defendant is Barry Stephens (named as

“Berry Stevens” in the Complaint), a Lincoln County Jail officer. The

Complaint passed initial review on a claim of excessive force. Plaintiff

alleges that there was a confrontation in a courtroom during which Defendant

Stephens choked Plaintiff, who was handcuffed, until Plaintiff lost

consciousness.1 Plaintiff alleges that the attack was malicious and that he

was unable to eat properly for eight days due to injuries to his neck. He

claims that the incident caused trauma and nightmares. Plaintiff seeks

$350,000 for pain and suffering and requests a jury trial.

Defendant Stephens now moves for summary judgment, arguing that

Plaintiff failed to exhaust his administrative remedies; that the force

Defendant Stephens used was objectively reasonable; and that Defendant

Stephens is entitled to qualified immunity because he did not violate

Plaintiff’s clearly established rights.

Plaintiff has filed responses to Defendant Stephens’ Motion for

Summary Judgment. [Docs. 52, 56]. He has also filed a Notice that is

construed as a Motion seeking leave to file a surreply. [Doc. 59].

II. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). The relevant inquiry is “whether

1 Plaintiff was charged with communicating a threat to another Lincoln County officer,

Deputy C. Mincey, in connection with the incident. [See Doc. 51-2 at 58].

the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). To

withstand a motion for summary judgment, “the nonmoving party must rely

on more than conclusory allegations, mere speculation, the building of one

inference upon another, or the mere existence of a scintilla of evidence.

Dash v. Mayweather, 731 F.3d 303, 311, (4th Cir. 2013).

III. DISCUSSION

A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action

shall be brought with respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner confined in any jail, prison, or

other correctional facility until such administrative remedies as are available

are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement

applies is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). (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. 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 sole exception to PLRA’s exhaustion

requirement is found in the plain text, i.e., “[a] prisoner need not exhaust

remedies if they are not ‘available.’” Ross v. Blake, 136 S.Ct. 1850, 1855

(2016). An administrative remedy is not “available” if a prisoner, “through

no fault of his own, was prevented from availing himself of it.” Moore v.

Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Examples of unavailability are:

(1) where the procedure operates as a simple dead end because officials are

unable or consistently unwilling to provide any relief to aggrieved inmates;

(2) where the grievance process itself is so incomprehensible that no

ordinary prisoner can discern or navigate it; and (3) where administrators

prevent inmates from availing themselves of remedies by way of

machination, misrepresentation, or intimidation. Ross, 136 S.Ct. at 1858-60.

Plaintiff alleges, and Defendant does not dispute, that Plaintiff was

taken back to the Mecklenburg County Jail after the incident with Defendant

Stephens. Plaintiff further alleges that he attempted to file a grievance about

the incident with Defendant Stephens while he was at the Mecklenburg

County Jail. Defendant argues that Plaintiff had the opportunity to grieve the

incident when he was returned to the Lincoln County Jail on June 25, 2018.

Here, the Lincoln County Sheriff’s Office Inmate Handbook requires a

grievance to be filed within ten days after an incident. [Doc. 51-6 at 2]. The

ten-day limit for filing a grievance for the May 9, 2018 incident had expired

by the time Plaintiff returned to the Lincoln County Jail on June 25, 2018.

Thus, viewing the evidence in the light most favorable to Plaintiff, the Lincoln

County Jail’s administrative grievance procedure was not “available” to

Plaintiff under these circumstances. See, e.g., Ramirez v. Young, 906 F.3d

530 (7th Cir. 2018) (holding that prisoner did not need to satisfy PLRA’s

exhaustion requirement where remedies were not available to the prisoner

at a time when he could have filed a timely grievance). Accordingly,

Defendant’s Motion for Summary Judgment based on the lack of exhaustion

of administrative remedies will be denied.

B. Excessive Force

The Fourteenth Amendment “protects a pretrial detainee from the use

of excessive force that amounts to punishment.” Graham v. Connor, 490

U.S. 386, 395 n.10 (1989). To state an excessive force claim, a pretrial

detainee must show only that the force “purposely or knowingly used against

him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389

(2015). The standard for assessing a pretrial detainee’s excessive force

claim is “solely an objective one.” Id. In determining whether the force was

objectively unreasonable, a court considers the evidence “from the

perspective of a reasonable officer on the scene, including what the officer

knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham,

490 U.S. at 396). Considerations that bear on the reasonableness or

unreasonableness of the force include: the relationship between the need for

the use of force and the amount of force used; the extent of the plaintiff’s

injury; any effort made by the officer to temper or limit the amount of force;

the severity of the security problem at issue; the threat reasonably perceived

by the officer; and whether the plaintiff was actively resisting. Id.

In the instant case, the parties dispute the circumstances surrounding

the use of force, the amount of force that Defendant Stephens used on

Plaintiff, the amount of force that was reasonable under the circumstances,

and the extent of the injury suffered by Plaintiff, if any. These questions are

genuine disputes of material fact and must be determined by a jury.

Defendant’s Motion for Summary Judgment on this basis will therefore be

denied.

C. Qualified Immunity

“Qualified immunity protects officers who commit constitutional

violations but who, in light of clearly established law, could reasonably

believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en banc). “To determine whether an officer is entitled to

qualified immunity, the court must examine (1) whether the plaintiff has

demonstrated that the officer violated a constitutional right and (2) whether

that right was clearly established at the time of the alleged violation.” E.W.

ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation

marks omitted). The doctrine of qualified immunity “gives government

officials breathing room to make reasonable but mistaken judgments, and

protects all but the plainly incompetent or those who knowingly violate the

law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation marks

omitted).

Defendant Stephens argues that he should be granted qualified

immunity because he did not violate any of Plaintiff’s clearly established

rights. However, the reasonableness of Defendant’s use of force is a jury

question in the instant case that precludes the Court from determining

whether Defendant Stephens violated Plaintiff’s clearly established rights.

Summary judgment based on qualified immunity will therefore be denied.

IV. CONCLUSION

For the reasons stated herein, Defendant’s Motion for Summary

Judgment is denied, and this case will therefore proceed to trial.2 Plaintiff’s

Motion for Leave to File Surreply is denied as moot.

2 Plaintiff will proceed to trial pro se. [See Misc. Case No. 3:19-mc-00013-MR Doc. 4:

ORDER

IT IS, THEREFORE, ORDERED that Plaintiff's “Notice of Motion for

Declaration to Support Amend Response Subpoena or Call Witnesses or

Order Statements Concerning 5:18-cv-196-FDW Case” [Doc. 59], which was

docketed as a Motion for Leave to File Surreply, is DENIED AS MOOT.

IT IS FURTHER ORDERED that Defendant's Motion for Summary

Judgment [Doc. 50] is DENIED.

IT IS SO ORDERED.

Signed: July 8, 2020

Martifi Reidinger ey

Chief United States District Judge Ale

Order of Suspension of Prisoner Assistance Program].