Wright v. Lassiter

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:18-cv-00090-MR

KAYIE SHAUNE WRIGHT, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

KENNETH LASSITER, et al., )

)

Defendants. )

___________________________ )

THIS MATTER comes before the Court on the Defendants’ Motion for

Summary Judgment [Doc. 64].

I. PROCEDURAL BACKGROUND

On April 2, 2018, the Plaintiff Kayie Shaune Wright, proceeding pro se,

filed this action pursuant to 42 U.S.C. § 1983 alleging the violation of his civil

rights while incarcerated at the Lanesboro Correctional Institution, the

Marion Correctional Institution, and the Alexander Correctional Institution.1

[Doc. 1]. The Plaintiff’s Complaint (the “Original Complaint”) asserted

several claims against ten different Defendants. [Id.].

1 The Plaintiff has been transferred since he filed this action and is now incarcerated at

Polk Correctional Institution in Butner, North Carolina.

On August 14, 2018, the Court conducted a frivolity review of the

Original Complaint. The Court determined that the Original Complaint only

stated a cognizable due process claim against Defendant Baker and

dismissed the claims against the other Defendants. [Doc. 9]. The Court

gave the Plaintiff 14 days to file a superseding Amended Complaint. [Id. at

30].

On August 24, 2018, the Plaintiff filed an Amended Complaint. [Doc.

13]. In his Amended Complaint, the Plaintiff asserted a variety of claims

against 85 Defendants, including: Lanesboro C.I. Captain Aaron, Marion C.I.

Nurse Altwel, Marion C.I. Disciplinary Hearing Officer (“DHO”) Robert T.

Barker, Alexander C.I. Superintendent Beaver, Alexander C.I. Unit Manager

Bieker, Marion C.I. Unit Manager T. Boysworth, Marion C.I. Mailroom Staff

Brookshire, Marion C.I. Captain A. Carson, Lanesboro C.I. Sergeant

Clawson, Marion C.I. Superintendent H. Corpening, Marion C.I. Officer

Cosby, Marion C.I. Program Director D. Cotherin, Marion C.I. Officer Davis,

Alexander C.I. Assistant Superintendent Dye, Alexander C.I. Physical

Therapist T. Ford, Marion C.I. Officer J. Grant, Marion C.I. Lieutenant

Guzman, Marion C.I. Officer Hamby, Marion C.I. Assistant Unit Manager

Hamilton, Marion C.I. Officer Hendley, Marion C.I. SRG Officer A.

Hergenrother, Lanesboro C.I. Floor Officer Holder, Marion C.I. Sergeant A.

Hollingworth, Lanesboro C.I. Floor Officer Honbarrier, Marion C.I. Officer S.

Hunt, Marion C.I. Program Director Ms. J. Jenkins, Marion C.I. Officer Keller,

Marion C.I. Officer Kidd, Marion C.I. Officer Kizer, Marion C.I. Sergeant

Kinzer, Lanesboro C.I. Sergeant Krantz, Lanesboro C.I. Sergeant Lambert,

Director of Prisons Kenneth F. Lassiter, Marion C.I. SRG Captain Long,

Marion C.I. Officer Lyons, Lanesboro C.I. Sergeant Mack, Marion C.I. Officer

R. Marsh, Lanesboro C.I. Floor Officer McClendon, Lanesboro C.I. Officer

Merriman, Marion C.I. Officer Morris, Marion C.I. DHO Randy Mull, Marion

C.I. Psychiatrist Dr. Murphy, Marion C.I. IB Officer Nanney, Marion C.I.

Sergeant T. Puett, Marion C.I. Captain Richards, Lanesboro C.I. Officer

Smith, Lanesboro C.I. Floor Officer Snipes, Lanesboro C.I. Nurse Stewart,

Marion C.I. Sergeant Stiles, Marion C.I. SRG Lieutenant C. Surrat, Marion

C.I. Case Worker Suttles, Marion C.I. Program Director G. Swink, Marion C.I.

SRG Sergeant Taylor, Marion C.I. Officer Tilley, Lanesboro C.I. Floor Officer

Ms. Wall, Marion C.I. Notary Amy Ward, Marion C.I. Assistant

Superintendent D. Watkins, Marion C.I. Nurse Welch, Lanesboro C.I. DHO

Alfred Williams, Marion C.I. Assistant Unit Manager A. York, Lanesboro C.I.

Sergeant Zimmerman, John Does 1-7, and Department of Public Safety

Psychiatrist Jane Doe. [Id.].

On August 30, 2018, the Court conducted a frivolity review of the

Plaintiff’s Amended Complaint. [Doc. 14]. The Court allowed the Plaintiff to

proceed on the excessive force claims against Defendants Guzman,

Hollingworth, Hudson, Kinzer, Lyons, McClendon, Tilley, and John Doe;2 the

due process claims against Defendants Barker, Brookshire, Hergenrother,

Long, Mull, Surrat, Taylor, and Williams; the freedom of religion claims

against Defendants Brookshire, Davis, Hergenrother, Marsh, Nanney, Puett,

and Watkins; and the mail interference claims against Defendants

Brookshire and Hergenrother. [Id. at 32]. The Court dismissed the Plaintiff’s

other claims without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). [Id].

On September 7, 2018, the Plaintiff filed a “Motion for a Permanent

Restraining Order and Preventive Relief.” [Doc. 20]. In that Motion, the

Plaintiff requested a preliminary injunction against the Defendants and asked

to be transferred to Central Prison in Raleigh, North Carolina or Scottland

Correctional Institution in Laurinburg, North Carolina. [Id. at 2]. On

September 13, 2018, the Court denied the Plaintiff’s Motion. [Doc. 21].

On October 15, 2018, the Plaintiff filed a “Motion for Notice of Reprisal”

asserting additional claims against some of the Defendants based on events

2 Defendant John Doe is actually two people, who have since been identified as Marion

C.I. Officer Edward McFalls and Marion C.I. Officer Bradley Morris.

that allegedly took place on October 9, 2018. [Doc. 25]. Specifically, the

Plaintiff alleged that some of the Defendants retaliated against him for filing

this action by punching him and denying him medical attention. [Id.]. On

October 19, 2018, the Plaintiff filed a “Motion for Permanent Restraining

Order, Preventive Relief/Injunction, and Immediate ‘Safety’ Transfer” based

on the events that allegedly took place on October 9, 2018. [Doc. 27]. On

February 12, 2019, the Court entered an Order denying both Motions. [Doc.

50].

On January 7, 2019, the Plaintiff filed a Motion for Summary Judgment.

[Doc. 42]. On April 12, 2019, the Plaintiff filed a “Motion for Judgment as a

Matter of Law, Motion for Judgment on the Pleadings, Plaintiff’s Notification

of Retaliation by Respondent/Defendant ‘T. Puett,’ and Motion to Transfer

Venue (Special Motion); and Notice of Prejudice.” [Doc. 52]. On June 3,

2019, the Plaintiff filed an “Averment Motion of Default Judgment; Motion of

Judgment on the Pleadings; and Judgment as a Matter of Law.” [Doc. 54].

On July 15, 2019, the Court entered an Order denying these Motions. [Doc.

58].

On January 9, 2019, the Defendants filed an Answer to the Plaintiff’s

Amended Complaint. [Doc. 43]. Following a period of discovery, the

Defendants filed a Motion for Summary Judgment on November 5, 2019.

[Doc. 64]. On December 2, 2019, the Plaintiff filed a “Declaration/Response.”

[Doc. 70].3 On December 9, 2019, the Defendants notified the Court that

they will not file a reply. [Doc. 71].

Having been fully briefed, this matter is ripe for disposition.

II. STANDARD OF REVIEW

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.” Fed. 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

3 The Plaintiff’s “Declaration/Response” states that ““[t]he initial complaint and amended

complaint filed by Plaintiff is truth.” [Doc. 70 at ¶ 3]. The Plaintiff signed the

“Declaration/Response” below a statement attesting that “[p]ursuant to 28 U.S.C. 1746(2),

I verify under penalty of perjury that the foregoing Declaration/Response is true and

correct.” [Id. at 3].

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. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations . . ., admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). 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, 129 S. Ct.

2658, 2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)).

III. FACTUAL BACKGROUND4

On April 17, 2016, the Plaintiff was being escorted in restraints back to

his cell at Lanesboro Correctional. [Doc. 66-31 at ¶ 3; Doc. 66-43 at ¶ 3].5

Because the Plaintiff refused to go up a flight of stairs, Defendant McLendon

and two other officers carried the Plaintiff into his cell. [Doc. 66-43 at ¶ 5].

The Plaintiff claims that Defendant McLendon slammed his head into a rail.

[Doc. 13 at 19].6 Once the Plaintiff was in his cell, he blocked the officer’s

attempts to close his cell door. [Doc. 66-31 at ¶ 6; Doc. 66-43 at ¶ 6].

Defendant McLendon and another officer attempted to move the Plaintiff so

the door could be closed. [Id.]. Defendant Hodgson arrived to assist. [Id. at

4 At the summary judgment stage, facts must be viewed in the light most favorable to the

nonmoving party.” Scott v. Harris, 550 U.S. 372, 380 (2007). This summary of facts is

presented for the analysis of the Defendants’ Motion for Summary Judgment, so the facts

are viewed in the light most favorable to the Plaintiff.

5 The April 17, 2016 incident was captured on video, which has been submitted to the

Court. [Doc. 66-32; Doc. 69].

6 The Defendants have presented an affidavit from Correctional Officer Keisha Wall, who

testified that neither Defendant McLendon nor any other officer slammed the Plaintiff’s

head into a railing. [Doc. 66-43 at ¶ 5].

¶ 8]. The Plaintiff claims that Defendant Hodgson kicked him in his stomach

while he was helping the other officers close the cell door. [Doc. 13 at 19].7

Defendant Williams was assigned to hear the disciplinary charges

against the Plaintiff from the incident on April 17, 2016. [Doc. 13 at 19]. The

Plaintiff claims that Jonnie Allen, a fellow prisoner, witnessed the incident

and wanted to write a statement on his behalf. [Id]. Defendant Williams,

however, refused to call Allen as a witness or obtain a statement from him.

[Id.].

On December 22, 2016, Defendant Watkins forced the Plaintiff to sign

a form stating that he wanted to be removed from a vegan diet. [Doc. 13 at

23]. The Plaintiff claims that Defendant Watkins’ actions forced him to violate

his religion by making him eat meat and processed foods. [Id.].

On March 10, 2017, Defendant Puett took several items from the

Plaintiff, including some “religious items.” [Doc. 13 at 20]. The Plaintiff

refused to sign a form when his property was returned because the religious

items were missing. [Id.]. The Plaintiff claims that he wanted to appeal the

7 Defendants Hodgson, McLendon, and Officer Wall have presented affidavits denying

that Defendant Hodgson kicked the Plaintiff in his stomach. [Doc. 66-31 at ¶ 10; Doc. 66-

43 at ¶ 10; Doc. 66-24 at ¶ 7].

refusal to return his religious items, but Defendant Brookshire would not let

him. [Id. at 21].8

On April 5, 2017, the Plaintiff refused to go to restrictive housing. [Doc.

13 at 21].9 A cell extraction team consisting of Defendant McFalls,

Defendant Hollingworth, Defendant Morris, and three other officers came to

the Plaintiff’s cell to move him to restrictive housing. [Doc. 66-25 at ¶ 4].

After the Plaintiff refused orders to submit to restraints, one of the officers

deployed pepper spray into the Plaintiff’s cell. [Id. at ¶ 8]. The Plaintiff used

his body to block the pepper spray. [Id.]. Defendant Morris then used a

battering ram to move the Plaintiff away from the door so that the pepper

spray could enter the cell. [Id. at ¶ 9]. The Plaintiff claims that Defendant

Morris hit him “in the urethra area.” [Doc. 70 at 1].10 After the pepper spray

was deployed, the Plaintiff submitted to restraints. [Doc. 66-25 at ¶ 11]. The

extraction team removed the Plaintiff from his cell and the Plaintiff started

resisting again. [Id. at ¶ 13]. Defendant Morris applied the bent wrist

8 The evidence submitted by the Defendants, however, shows that the Plaintiff ultimately

filed a grievance regarding the loss of his property. [Doc. 66-11].

9 The April 5, 2017 incident was captured on video, which has been submitted to the

Court. [Doc. 66-28; Doc. 69].

10 Defendant Hollingworth presented an affidavit that testified that that Defendant Morris

never hit the Plaintiff in the urethra. [Doc. 66-25 at ¶ 10].

technique to stop the Plaintiff’s resistance. [Id. at 12]. The Plaintiff kept

resisting. [Id. at ¶ 13]. The extraction team then placed the Plaintiff on the

ground to regain control of him. [Id.]. Because the Plaintiff continued

resisting, Defendant McFalls used the electronic shield on the Plaintiff’s

head. [Doc. 70 at 2].11 After the shield was applied, the Plaintiff stopped

resisting and was escorted to a shower to wash off the pepper spray. [Id. at

¶ 15].

Defendant Barker was assigned to hear the disciplinary charges

against the Plaintiff from the April 5, 2017 incident. [Doc. 66-1 at ¶ 4]. Under

the North Carolina Department of Public Safety’s policies, an inmate must

request to provide a statement, designate witnesses, or request that

evidence be gathered. [Id. at ¶¶ 5-6]. The Plaintiff never made such a

request. [Id. at ¶ 6]. As such, Defendant Barker determined that the Plaintiff

waived his right to present witnesses or have witnesses make a statement

at the hearing. [Id.]. Defendant Barker found the Plaintiff guilty of the

charges and imposed various consequences, including 60 days of

Restrictive Housing for Disciplinary Purposes (“RHDP”), 80 hours of extra

duties, 180 days of suspended canteen privileges, 60 days of suspended

11 Defendants Hollingworth and McFalls presented affidavits that testified that Defendant

McFalls applied the electronic shield to the Plaintiff’s shoulders. [Doc. 66-25 at 2; Doc.

66-30 at 3].

visitation privileges, and 6 months of suspended draws. [Doc. 66-3]. The

Plaintiff alleges that he wanted to appeal Defendant Barker’s decision, but

that Defendants Hergenrother, Taylor, Surrat, Long, and Brookshire refused

to let him submit an appeal. [Doc. 13 at 22].

On June 7, 2017, the Plaintiff was in restraints and was being escorted

to his cell by Defendant Lyons. [Doc. 66-22 at ¶ 10].12 As the Plaintiff and

Defendant Lyons passed Defendant Tilley, the Plaintiff slipped his hand out

of his restraints and punched Defendant Tilley in the face. [Doc. 66-29 at ¶

3; Doc. 66-42 at ¶ 3]. Defendant Lyons attempted to regain control over the

Plaintiff, who continued to strike Defendant Tilley. [Id.]. Defendant Guzman

arrived and deployed pepper spray on the Plaintiff. [Doc. 66-22 at ¶ 4]. After

other officers arrived to assist, the Plaintiff was restrained and taken to a

shower to wash off the pepper spray. [Id. at ¶¶ 4-5]. The Plaintiff claims that

Defendants Guzman, Kinzer, Lyons, and Tilley pulled his hair, kicked him,

and sprayed mace on him during the altercation. [Doc. 13 at 22].

On March 3, 2018, Defendants Davis, Nanney, and Marsh went into

the Plaintiff’s cell and threw away his property, including a religious necklace.

[Id. at 24].

12 The June 7, 2017 incident was captured on video, which has been submitted to the

Court. [Doc. 66-23; Doc. 69].

On May 29, 2018, Defendant Hergenrother opened mail from the

Plaintiff that was marked confidential. [Id.]. On June 6, 2018, the Plaintiff

mailed out statements associated with what the Department of Public Safety

considers a “Security Risk Group.” [Doc. 66-34 at ¶ 7]. The Plaintiff was

charged with disciplinary offenses for misusing the mail and for participating

in activity or behavior associated with a Security Risk Group. [Doc. 66-35 at

1]. Defendant Mull was assigned to hear the disciplinary charges against

the Plaintiff from his use of the mail. [Doc. 66-34 at ¶ 6]. The Plaintiff

requested statements and live testimony from several state employees,

including the Director of Prisons and the Governor. [Id. at ¶ 10]. Defendant

Mull claims he did not gather statements or request live testimony from those

individuals because there was no reason to believe they had factual

knowledge of the incident. [Id.]. Defendant Mull found the Plaintiff guilty of

the charges related to his misuse of the mail and imposed 30 days of RHDP,

80 hours of extra duties, 90 days of suspended canteen privileges, 30 days

of suspended radio privileges, and 3 months of suspended draws. [Doc. 66-

36 at 3-4].

IV. DISCUSSION

A. Sovereign Immunity

The Plaintiff brings his claims against each Defendant in their official

and individual capacities. [Doc. 13; Doc. 14]. All the Defendants move for

summary judgment on the Plaintiff’s official capacity claims, arguing that

such claims are barred by the Eleventh Amendment. [Doc. 65 at 22].

A suit against a state official in his official capacity is construed as

against the state itself. Will v. Michigan Dep't of State Police, 491 U.S. 58,

71 (1989). It is well settled that neither a state nor its officials acting in their

official capacities are “persons” subject to suit under 42 U.S.C. § 1983. Id.;

see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). Moreover,

the Eleventh Amendment generally bars lawsuits by citizens against non-

consenting states brought either in state or federal courts. See Alden v.

Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Florida v. Florida,

517 U.S. 44, 54 (1996).

Although Congress may abrogate the states' sovereign immunity, it

has not chosen to do so for claims under 42 U.S.C. § 1983. See Quern v.

Jordan, 440 U.S. 332, 343 (1979). Likewise, North Carolina has not waived

its sovereign immunity by consenting to be sued in federal court for claims

brought under 42 U.S.C. § 1983. See generally Mary's House, Inc. v. North

Carolina, 976 F. Supp. 2d 691, 697 (M.D.N.C. 2013) (claim under 42 U.S.C.

§ 1983 barred by sovereign immunity of North Carolina). As such, the

Plaintiff cannot bring claims against the Defendants in their official

capacities. Therefore, the Defendants’ Motion for Summary Judgment on

those claims will be granted.

B. Excessive Force Claims

The Plaintiff brings excessive force claims against Defendants

McLendon, Hodgson, Morris, Hollingworth, McFalls, Guzman, Kinzer, Lyons,

and Tilley. [Doc. 13; Doc. 14]. Those Defendants move for summary

judgment on the grounds that excessive force was never used. [Doc. 65 at

11-16].

The Eighth Amendment prohibits prison officials from unnecessarily

and wantonly inflicting pain on prisoners. Hill v. Crum, 727 F.3d 312, 317

(4th Cir. 2013). “An inmate’s Eighth Amendment excessive force claim

involves both an objective and a subjective component.” Brooks v. Johnson,

924 F.3d 104, 112 (4th Cir. 2019). “The objective component asks whether

the force applied was sufficiently serious to establish a cause of action.” Id.

The subjective component “ultimately turns on whether force was applied in

a good faith effort to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.” Id. at 112-13. The test

for evaluating whether officers acted maliciously or wantonly considers (1)

the need for the application of force; (2) the relationship between the need

and the amount of force that was used; (3) the extent of any reasonably

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

any efforts made to temper the severity of a forceful response. Thompson

v. Virginia, 878 F.3d 89, 99 (4th Cir. 2017) (citation omitted).

1. April 17, 2016

While the Plaintiff claims that the Defendant McLendon slammed his

head into a rail and that Defendant Hodgson kicked him on April 17, 2016,

the Court’s review of the video footage from that date shows that Defendant

McLendon never slammed the Plaintiff’s head into a railing and Defendant

Hodgson never kicked him during the alleged incident. Instead, Defendant

McLendon, Defendant Hodgson, and other officers used reasonable and

appropriate force to overcome the Plaintiff’s resistance and place him in his

cell. Based on that forecast of evidence, no reasonable jury could find that

Defendant McLendon or Defendant Hodgson used excessive force.

Accordingly, Defendant McLendon and Defendant Hodgson’s Motion for

Summary Judgment will be granted as to the Plaintiff’s excessive force

claims based on the events of April 17, 2016.

2. April 5, 2017

The Plaintiff claims that Defendant Morris hit him “in the urethra area”

when the Plaintiff was removed from his cell extraction team on April 5, 2017.

[Doc. 70 at 1]. The Court’s review of the video footage, however, shows that

Defendant Morris used a battering ram to move the Plaintiff because he was

blocking the deployment of pepper spray into his cell. To the extent that the

Plaintiff was struck in the pelvic area by Defendant Morris, that use of force

was necessary because the Plaintiff was using his pelvic area to block the

opening into his cell and prevent the use of pepper spray. As such, no

reasonable jury could find that Defendant Morris used excessive force on

April 5, 2017.

The Plaintiff further claims that Defendant Hollingworth threw him on

the floor on April 5, 2017. [Doc. 13 at 20]. The Court’s review of the video

footage from that date shows that the Plaintiff was not cooperating with

officers while they were escorting him from his cell. Because of the Plaintiff’s

resistance, Defendant Hollingworth instructed the officers to take the Plaintiff

to the ground. Based on the Court’s review of the evidence, no reasonable

jury could conclude that Defendant Hollingworth threw the Plaintiff to the floor

or that his application of force was sufficiently serious to support an

excessive force charge. Brooks, 924 F.3d at 112. As such, no reasonable

jury could find that Defendant Hollingworth used excessive force on April 5,

2017.

The Plaintiff also claims that Defendant McFalls shocked him with an

electronic shield on April 5, 2017. [Doc. 13 at 20]. The Court’s review of the

video footage shows that Defendant McFalls told the Plaintiff that the

electronic shield would be deployed if he resisted the officers who were

escorting him from his cell. Despite that warning, the Plaintiff resisted the

officers and continued resisting after Defendant Hollingworth told the officers

to put him on the ground. Defendant McFalls deployed the electronic shield

to stop the Plaintiff’s resistance. That use of force was insufficiently

malicious or wanton to support an excessive force claim because it was

necessary and proportionate to the risk posed by the Plaintiff’s resistance.

Thompson, 878 F.3d at 99. As such, no reasonable jury could find that

Defendant McFalls used excessive force.

For all these reasons, Defendants Morris, Hollingworth, and McFalls’

Motion for Summary Judgment on the Plaintiff’s excessive force claims

related to the events of April 5, 2017 will be granted.

3. June 7, 2017

While the Plaintiff claims that Defendants Guzman, Kinzer, Lyons, and

Tilley assaulted him by pulling his hair and kicking him, the Court’s review of

the video footage from that date shows that no officer pulled the Plaintiff’s

hair or kicked him. Instead, the Plaintiff assaulted Defendant Tilley and had

to be physically restrained by several other officers to stop his assault.

Although Defendant Guzman used pepper spray on the Plaintiff, that use of

force was necessary and proportionate to the risk posed by the Plaintiff, who

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

the assault. Thompson, 878 F.3d at 99. As such, no reasonable jury could

find that Defendants Guzman, Kinzer, Lyons, or Tilley used excessive force.

Accordingly, Defendants Guzman, Kinzer, Lyons, or Tilley’s Motion for

Summary Judgment on the Plaintiff’s excessive force claims related to the

events of June 7, 2017 will be granted.

C. Due Process Claims

The Plaintiff brings due process claims against Defendants Barker,

Brookshire, Hergenrother, Long, Mull, Surrat, Taylor, and Williams. [Doc.

13; Doc. 14]. Those Defendants, other than Defendant Williams, move for

summary judgment on the grounds that the Plaintiff cannot show that his

liberty interests were implicated by the disciplinary proceedings at issue.

[Doc. 65 at 17-21].

Defense counsel states that Defendant Williams does not move for

summary judgment on the due process claim against him because he claims

he was never served with the Complaint. [Doc. 65 at 1 n.1]. Pursuant to

Federal Rule of Civil Procedure 4(m), the Plaintiff will have 30 days from the

entry of this Order to either show good cause for the failure to serve

Defendant Williams or to serve Defendant Williams. Failure to do so will

result in the dismissal of the due process claim against Defendant Williams.

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. “A prisoner claiming a violation of his right to

procedural due process must show: (1) that there is a ‘state statute,

regulation, or policy [that] creates such a liberty interest,’ and (2) that ‘the

denial of such an interest imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.’” Martin v. Duffy,

858 F.3d 239, 253 (4th Cir. 2017) (quoting Prieto v. Clarke, 780 F.3d 245,

248-49 (4th Cir. 2015)). “Whether confinement conditions are atypical and

substantially harsh ‘in relation to the ordinary incidents of prison life’ is a

‘necessarily . . . fact specific’ comparative exercise.” Incumaa v. Stirling, 791

F.3d 517, 527 (4th Cir. 2015) (alteration in original) (quoting Beverati v.

Smith, 120 F.3d 500, 502–03 (4th Cir. 1997)).

The Plaintiff alleges that Defendants Barker, and Mull refused to call

witnesses during disciplinary hearings, and Defendants Hergenrother,

Taylor, Surrat, Long, and Brookshire refused to let him appeal rulings from

disciplinary hearings. [Doc. 13 at 19, 21-22, 24]. As a result of those

hearings, the Plaintiff had his canteen, telephone, visitation, and trust fund

withdrawal privileges suspended, was assigned extra duty time, and was

temporarily reassigned to RHDP. [Doc. 66-3; Doc. 66-36].

“[T]emporary suspension of privileges does not implicate a

constitutionally protected liberty or property interests.” Locke v. Solomon,

No. 3:17-CV-00337-FDW, 2018 WL 5636164, at *3 (W.D.N.C. Oct. 31, 2018)

(citation omitted), appeal dismissed sub nom. Locke v. Carver, 770 F. App'x

71 (4th Cir. 2019). Likewise, assignment of extra duty does implicate liberty

interests because it does not constitute an atypical and significant hardship.

Samford v. Staples, 249 Fed App’x. 1001, 1004 (5th Cir. 2007). As such,

the suspension of privileges and the assignment of extra duty do not

implicate the Plaintiff’s liberty interests.

With regard to the reassignments to RHDP, 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.”

McNeill v. Johnson, No. 3:18-CV-188-FDW, 2020 WL 534196, at *8

(W.D.N.C. Feb. 3, 2020) (citing Sandin v. Conner, 515 U.S. 472, 484 (1995);

Gaston v. Taylor, 946 F.2d 340, 343 (4th 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.”)). The forecast of evidence shows that the

Plaintiff’s reassignments to RHDP were temporary and did not affect the

duration of his sentence. [Doc. 66-3; 66-36]. The forecast of evidence

further shows that RHDP is not significantly more onerous than close custody

general population at Marion Correctional Institution. [Doc. 66-38]. As such,

the Plaintiff’s reassignments to RHDP were not atypical and significant

hardships that implicate liberty interests. Incumaa, 791 F.3d at 531 (holding

that administrative segregation from the general population does not

implicate a protected liberty interest absent a showing of specific facts that

conditions of confinement are significantly more onerous). Accordingly, the

reassignments to RHDP cannot constitute grounds for a due process claim.

Because the Plaintiff fails to allege that his liberty interests were implicated

by the alleged due process deprivations, Defendants Barker, Brookshire,

Hergenrother, Long, Mull, Surrat, and Taylor’s Motion for Summary

Judgment will be granted as to the due process claims against them.

D. Mail Interference Claims

The Plaintiff brings mail interference claims against Defendant

Hergenrother and Brookshire. [Doc. 13 at 21, 24]. The Plaintiff asserts that

on May 29, 2018, Defendant Hergenrother opened his outgoing legal mail

and that Defendant Brookshire was working in the mailroom and denied the

Plaintiff’s request for a religious item on or before June 5, 2017. [Id.].

Defendants Hergenrother and Brookshire move for summary judgment

solely on the grounds that the Plaintiff has failed to exhaust his administrative

remedies on those claims. [Doc. 65 at 10-11].

The PLRA states 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. §

1997(a). In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court stated

that “[t]here is no question that exhaustion is mandatory under the PLRA and

that unexhausted claims cannot be brought in court.” Id. at 211 (citing Porter,

534 U.S. at 524). The exhaustion of administrative remedies must occur

before a civil action is commenced. Porter v. Nussle, 534 U.S. 516 (2002).

For example, a prisoner may not exhaust his administrative remedies during

the pendency of a Section 1983 action. See Germain v. Shearin, 653 Fed.

Appx. 231, 234 (4th Cir. 2016); French v. Warden, 442 F. App’x 845, 846

(4th Cir. 2011). As such, a plaintiff cannot cure an original failure to exhaust

administrative remedies by exhausting administrative remedies after the

action was filed and then filing an amended complaint. Ahmed v. Dragovich,

297 F.3d 201, 209 (3d Cir. 2002). If, however, new claims arise after an

original complaint is filed, those claims are not subject to dismissal for failure

to exhaust administrative remedies if the plaintiff exhausts his administrative

remedies on those claims and then includes them in an amended complaint.

Kessler v. Vaughn, No. 1:15CV735 (GBL/JFA), 2016 WL 7238810, at *6

(E.D. Va. Dec. 13, 2016) (citing Malouf v. Turner, 814 F. Supp. 2d 454, 456

(D.N.J. 2011)); see also Rhodes v. Robinson, 621 F.3d 1002, 1006 (9th Cir.

2010) (PLRA’s exhaustion requirement was satisfied for new claims raised

in amended complaint which arose after original complaint was filed where

administrative remedies for new claims were exhausted before the amended

complaint was filed).

In Anderson v. XYZ Correctional Health Servs., 407 F.3d 674, 683 (4th

Cir. 2005), the Fourth Circuit held that:

[A]n inmate's failure to exhaust administrative

remedies is an affirmative defense to be pleaded and

proven by the defendant. That exhaustion is an

affirmative defense, however, does not preclude the

district court from dismissing a complaint where the

failure to exhaust is apparent from the face of the

complaint, nor does it preclude the district court from

inquiring on its own motion into whether the inmate

exhausted all administrative remedies.

The Defendants provide an affidavit from Kimberly Grande, the

Executive Director of the North Carolina Department of Public Safety’s

Inmate Grievance Board, detailing the Plaintiff’s grievances and attaching

copies of those grievances. [Doc. 66-4; Docs. 66-6 through 66-19].

According to Grande’s Affidavit, the Plaintiff exhausted his administrative

remedies on twelve grievances between April 1, 2016, and April 4, 2018.

[Doc. 66-4 at 2-4].

None of the grievances documented in Grande’s Affidavit presented a

mail interference claim against Defendant Brookshire. [Docs. 66-6 through

66-19]. The Plaintiff does not submit any evidence to show that he

exhausted his administrative remedies on that claim. As such, there is no

genuine issue of material fact as to whether the Plaintiff has exhausted his

administrative remedies on that claim. Jones v. Bock, 549 U.S. 199, 211

(2007). Accordingly, Defendants’ Brookshire’s Motion for Summary

Judgment will be granted and the Plaintiff’s mail interference claim against

him will be dismissed without prejudice. Dillard v. Anderson, No. 2:13-CV-

31-FDW, 2010 WL 9553022, at *2 n.2 (W.D.N.C. Sept. 6, 2010) (Whitney,

C.J.). (“A dismissal for failure to exhaust administrative remedies is without

prejudice.”).

The Plaintiff’s mail interference claim against Defendant Hergenrother,

however, arose on May 29, 2018, after the Plaintiff filed his Original

Complaint on April 2, 2018 and before he filed his Amended Complaint on

August 24, 2018. As such, that claim can survive Defendant Hergenrother’s

Motion for Summary Judgment if the Plaintiff exhausted his administrative

remedies before August 24, 2018. Kessler, 2016 WL 7238810, at *6 (citing

Malouf, 814 F. Supp. 2d at 456); see also Rhodes, 621 F.3d at 1006 (PLRA’s

exhaustion requirement was satisfied for new claims raised in amended

complaint which arose after original complaint was filed where administrative

remedies for new claims were exhausted before the amended complaint was

filed). Grande’s Affidavit, however, only details the grievances filed by the

Plaintiff between April 1, 2016 and April 4, 2018. [Doc. 66-4 at 2-4].

Defendant Hergenrother does not offer any other forecast of evidence to

show whether the Plaintiff exhausted his administrative remedies between

April 4, 2018 and the filing of his Amended Complaint on August 24, 2018.

As such, Defendant Hergenrother has failed to carry his burden to show that

the Plaintiff failed to exhaust his administrative remedies on that claim.

Anderson, 407 F.3d at 683. Accordingly, Defendant Hergenrother’s Motion

for Summary Judgment on the Plaintiff’s mail interference claim will be

denied.

E. Religious Exercise Claims

The Plaintiff brings religious exercise claims against Defendants

Brookshire, Davis, Hergenrother, Marsh, Nanney, Puett, and Watkins. [Doc.

13 at 20-23]. Defendants Brookshire, Davis, Hergenrother, Marsh, Nanney,

Puett, and Watkins move for summary judgment on the grounds that the

Plaintiff failed to exhaust his administrative remedies on those claims. [Doc.

65 at 10-11, 17]. Defendant Puett also moves for summary judgment on the

grounds that the Plaintiff’s religious exercise claim against her is more

properly cast as a conversion claim and the Plaintiff has not exercised the

state remedy that is available for that conversion claim. [Id. at 16-17].

The religious exercise claims against Defendants Brookshire, Davis,

Hergenrother, Marsh, Nanney, and Watkins all arose before the Plaintiff filed

his Original Complaint on April 2, 2018. As such, the Plaintiff had to exhaust

his administrative remedies on those claims before that date. Ahmed, 297

F.3d at 209. As detailed in Grande’s Affidavit, however, the Plaintiff failed to

exhaust his administrative remedies on those claims before he commenced

this action on April 2, 2018. [Doc. 66-4]. The Plaintiff has failed to present

any evidence to otherwise show that he exhausted his administrative

remedies with regard to those claims. As such, there is no genuine issue of

material fact as to whether the Plaintiff has exhausted his administrative

remedies with regard to those claims. Jones, 549 U.S. at 211. Accordingly,

Defendants’ Brookshire, Davis, Hergenrother, Marsh, Nanney, and Watkins’

Motion for Summary Judgment will be granted and the Plaintiff’s religious

exercise claims against them will be dismissed without prejudice. Dillard,

2010 WL 9553022, at *2 n.2.

With regard to the religious exercise claims against Defendant Puett,

the Plaintiff filed a grievance alleging that Defendant Puett took his

possessions from him, including two “Rasta hats” and religious items. [Doc

66-11 at 2]. The Plaintiff exhausted his administrative remedies on that

grievance on May 19, 2017. [Doc. 66-11 at 1]. As such, the forecast of

evidence shows that the Plaintiff exhausted his administrative remedies on

that claim before filing this action.

While Defendant Puett is correct that those allegations could

potentially support a claim for conversion, the Plaintiff casts this as a religious

exercise claim. [Doc. 13 at 20 (stating that “Plaintiff [has a] strong belief and

participation in the sincere ‘Rastafarian Faith’ and therefore can have his

crowns and rasta books.”].13 Because the Plaintiff’s brings a religious

exercise claim, he did not need to exhaust a state remedy. As such,

Defendant Puett’s Motion for Summary Judgment on the religious exercise

claim against her will be denied.

13 The Court also has previously construed the Plaintiff’s allegations as presenting a

religious exercise claim. [Doc. 14 at 30].

V. CONCLUSION

For all these reasons, the Defendants’ Motion for Summary Judgment

will be granted in part and denied in part as follows. The Motion will be

granted as to the due process claims against Defendants Barker, Brookshire,

Hergenrother, Long, Mull, Surrat, and Taylor and the excessive force claims

against Defendants McLendon, Hodgson, Morris, Hollingworth, McFalls,

Guzman, Kinzer, Lyons, and Tilley. Those claims will be dismissed with

prejudice. The Motion will be further granted as to the religious exercise

claims against Defendants Brookshire, Davis, Hergenrother, Marsh, Nanney,

and Watkins and the mail interference claim against Defendant Brookshire.

Those claims will be dismissed without prejudice. The Motion will be denied

as to the mail interference claim against Defendant Hergenrother and the

religious exercise claim against Defendant Puett.

O R D E R

IT IS, THEREFORE, ORDERED that the Defendants’ Motion for

Summary Judgment [Doc. 64] is hereby GRANTED IN PART and DENIED

IN PART as follows:

(1) The Motion is GRANTED with respect to the due process claims

against Defendants Barker, Brookshire, Hergenrother, Long,

Mull, Surrat, and Taylor and the excessive force claims against

Defendants McLendon, Hodgson, Morris, Hollingworth, McFalls,

Guzman, Kinzer, Lyons, and Tilley and those claims are

DISMISSED WITH PREJUDICE;

(2) The Motion is GRANTED with respect to the mail interference

claim against Defendant Brookshire and the religious exercise

claims against Defendants Brookshire, Davis, Hergenrother,

Marsh, Nanney, and Watkins and those claims are DISMISSED

WITHOUT PREJUDICE;

(3) |The Motion is DENIED with respect to the mail interference claim

against Defendant Hergenrother and the religious exercise claim

against Defendant Puett.

IT IS FURTHER ORDERED that pursuant to Federal Rule of Civil

Procedure 4(m), the Plaintiff shall have thirty (30) days from the entry

of this Order to either serve Defendant Williams or provide good cause

for his failure to do so.

IT IS SO ORDERED.

Signed: August 12, 2020

Ct ey

Chief United States District Judge AS

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