# Sisk v. Holden

> District Court, W.D. North Carolina · December 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10256597

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** December 29, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10256597

## How later opinions describe it (automated extraction)

- finding Heck barred plaintiff’s excessive force claim where struggle between plaintiff and officer defendants gave rise to plaintiff’s assault conviction and the excessive force claim and assault conviction were “inextricably intertwined”
- holding Heck barred prisoner’s § 1983 claim against officer for excessive force while apprehending the plaintiff where the plaintiff was convicted of battery of the officer during the course of the apprehension

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:18-cv-00366-MR

JAMES DARIN SISK, )
)
Plaintiff, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
KEVIN HOLDEN, et. al., )
)
Defendants. )
___________________________ )

THIS MATTER comes before the Court on Defendants’ Motion for
Summary Judgment [Doc. 19].
I. PROCEDURAL BACKGROUND
On December 20, 2018, Plaintiff James Darin Sisk (“Plaintiff”),
proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983 for the
violation of his civil rights while he was a pre-trial detainee at the
Transylvania County Detention Center (“Detention Center”) in Brevard, North
Carolina, based on the alleged use of excessive force by Defendant Kevin
Holden, identified as a Lieutenant with the Transylvania County Sheriff’s
Office (“Sheriff’s Office”). [Doc. 1]. On August 20, 2019, the Court conducted
a frivolity review of the Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2)
and 1915A, and allowed Plaintiff’s claim against Defendant Holden to
proceed, but ordered Plaintiff to file an amended complaint within 20 days to
state the relief he is seeking in the action and to more clearly state what

injuries he alleges occurred as a result of Defendant Holden’s conduct. [Doc.
8]. Plaintiff filed an Amended Complaint in which he sought to add two more
Defendants: Jimmy Harris, identified as the mayor of Transylvania County,

and Joshua Laughter, identified as a Sergeant with the Transylvania County
Sheriff’s Office.1 [Doc. 9].
In his Amended Complaint Plaintiff alleged, in pertinent part, that on
May 26, 2016, while Defendant Holden was booking Plaintiff for a property

damage charge at the Detention Center, he “insulted” Plaintiff and then
grabbed him by the throat, “choked and repeatedly slammed [Plaintiff]
against the wall, while handcuffed [to a bench] and unable to defend

[himself].” [Doc. 9-1 at 1-2]. While Plaintiff was being choked, he gasped for
air and “struggle[ed] to breath.” [Id. at 2]. Defendant Laughter and Corporal
Medcalf [sic] “grabbed [Plaintiff’s] left and right arms which were already
handcuffed.” [Id.]. “Still being choked, struggling to breath,” Plaintiff

“coughed up phlegm unto Lt. Holden.” [Id.]. On review of Plaintiff’s Amended
Complaint, the Court dismissed Defendant Harris for the reasons stated in

1 Plaintiff sued Defendants Holden and Laughter in their official and individual capacities
and Defendant Harris in his official capacity only. [Doc. 9 at 2-3].
that Order and the matter proceeded against Defendants Holden and
Laughter. [Doc. 10].

On April 28, 2020, Defendants Holden and Laughter (“Defendants”)
filed a Motion for Summary Judgment. [Doc. 19]. Defendants argue that
summary judgment should be granted because Plaintiff failed to exhaust

administrative remedies, because Heck v. Humphrey bars Plaintiff’s claim
against Defendant Holden, because Defendants did not use excessive force
on Plaintiff, and because qualified immunity bars Plaintiff’s claims against
Defendants. [Doc. 20].

Thereafter, the Court entered an order in accordance with Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the requirements
for filing a response to the summary judgment motion and of the manner in

which evidence could be submitted to the Court. [Doc. 21]. The Plaintiff was
specifically advised that he “may not rely upon mere allegations or denials of
allegations in his pleadings to defeat a summary judgment motion.” [Id. at
2]. Rather, he must support his assertion that a fact is genuinely disputed

by “citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” [Id. (citing Fed. R.
Civ. P. 56(c)(1)(a))]. The Court further advised that:
An affidavit is a written statement under oath; that is,
a statement prepared in writing and sworn before a
notary public. An unsworn statement, made and
signed under the penalty of perjury, may also be
submitted. Affidavits or statements must be
presented by Plaintiff to this Court no later than
fourteen (14) days from the date of this Order and
must be filed in duplicate.

[Id. at 3-4 (citing Fed. R. Civ. P. 56(c)(4))]. On May 18, 2020, a family
member of Plaintiff filed an unsigned letter on Plaintiff’s behalf, which
reported that Plaintiff “would like to withdraw charges against Joshua
Laughter as he was following orders….” [Doc. 22]. The Court construed the
letter as a motion for voluntary dismissal and denied it without prejudice,
advising Plaintiff that he may file a motion to dismiss Defendant Laughter,
but that he must do so on his own behalf. [Doc. 24 at 3]. Plaintiff, however,
has not so moved. Furthermore, Plaintiff has filed nothing in response to
Defendants’ summary judgment motion. Thus, in terms of evidentiary
forecast, the Defendants’ is unrefuted.
In support of their summary judgment motion, Defendants have
submitted their own declarations, records from a related criminal proceeding

that was brought against Plaintiff in Transylvania County as more fully
discussed below, the Declaration of Jeremy Queen, the Detention Center’s
Grievance Policy, and Plaintiff’s grievances at the Detention Facility. [Docs.
20-1 to 20-9].
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
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). Courts “need
not accept as true unwarranted inferences, unreasonable conclusions, or

arguments.” Eastern Shore Mkt. Inc. v. J.D. Assoc.’s, LLP, 213 F.3d 174,
180 (4th Cir. 2000). 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 BACKGROUND
Defendants’ uncontroverted forecast of evidence shows the following.

On May 26, 2016, Defendant Holden, a Lieutenant with the Sheriff’s Office,
arrested Plaintiff for damage to property and took him to the Detention
Center. [Doc. 20-2 at ¶¶ 2-3: Declaration of Kevin Holden]. While Holden

was completing the booking paperwork, Plaintiff began to curse and became
verbally abusive. Holden finished the paperwork, walked over to Plaintiff
where he was seated on a bench, and told him to calm down. [Id. at ¶ 4-5].

Plaintiff stood up from the bench, walked toward Holden, and said “take off
this [expletive] cuff and I’ll beat your ass like a man.” [Id. at ¶ 5]. Holden
again told Plaintiff to calm down. [Id.]. In response, Plaintiff clinched [sic]
his fist and pulled back as though he was going to hit Holden. [Id.]. Holden

pushed Plaintiff backwards into the wall to prevent Plaintiff from hitting him.
[Id. at ¶ 6]. Holden again told Plaintiff to calm down and Plaintiff continued
to come toward Holden, so Holden again pushed him down to the bench.

[Id. at ¶ 6]. Detention Officer Metcalf radioed Defendant Laughter, a
Sergeant with the Sheriff’s Office, for assistance with Plaintiff, who was
considered a combative inmate. [Doc. 20-3 at ¶ 3: Declaration of Joshua
Laughter]. Laughter came over to assist Holden in controlling Plaintiff and

to prevent Plaintiff from hitting Holden. [Doc. 20-2 at ¶ 7]. When Laughter
arrived at intake, he observed Holden attempting to hold Plaintiff down on
the bench, while Plaintiff was cursing and yelling. [Doc. 20-3 at ¶ 4]. While

Holden, Metcalf, and Laughter were attempting to control Plaintiff, Plaintiff
sat up and spat on Holden’s chest. [Doc. 20-2 at ¶ 8]. Plaintiff continued to
curse at Holden and told Laughter and Metcalf that he had no issue with

them. [Doc. 20-3 at ¶ 6]. Laughter and Metcalf finally secured Plaintiff and
took him to a holding cell. [Doc. 20-2 at ¶ 9; Doc. 20-3 at ¶ 8]. Holden left
the Detention Center and secured a warrant against Plaintiff for malicious

conduct by a prisoner. [Doc. 20-2 at ¶ 10].
On the same day, Plaintiff was charged with and arrested for malicious
conduct by a prisoner in violation of N.C.G.S. § 14-258.4 for spitting on
Defendant Holden while Holden was performing his duties as an employee

of the Transylvania County Sheriff’s Office. [Docs. 20-4, 20-5]. A jury found
Plaintiff guilty of this offense and Plaintiff was sentenced to a term of
imprisonment of 22 to 36 months. [Doc. 20-6 at 2]. Judgment on this

conviction was entered on August 16, 2017. [Id. at 3]. Plaintiff’s conviction
was upheld on appeal. State v. Sisk, 820 S.E.2d 138 (2018) (unpublished
decision).
The Detention Center has established a three-step procedure for

submission and review of inmate grievances, which is found in the Inmate
Handbook and made available to every inmate on the Detention Center
Kiosk. [Doc. 20-7 at ¶ 5: Declaration of Jeremy Queen]. The grievance

policy requires that all grievances be in writing. [Id. at ¶ 6; Doc. 20-8 at 2:
Grievance Policy]. Furthermore, all grievances must be filed within two days
after the subject incident has occurred. Administration staff then attempts to

resolve the grievance with the inmate. [Id. at ¶ 8; Doc. 20-8 at 2]. If the
grievance cannot be resolved by administration staff, it is forwarded to
Jeremy Queen, the Division Commander for Detention at the Detention

Center, for review and formal resolution. [Id. at ¶¶ 4, 9; Doc. 20-8 at 2]. The
inmate then receives a written response to his grievance within five business
days. [Id. at ¶ 10; Doc. 20-8 at 3]. Grievances are given “prompt and fair
consideration” and “the appropriate action [is] taken.” [Doc. 20-8 at 2-3]. If

an inmate is dissatisfied with the grievance response, he may file an appeal
within two days of receiving the response. [Doc. 20-7 at ¶ 10; Doc. 20-8 at
3]. The Sheriff rules on any grievance appeals. [Id.].

Queen reviewed the grievances filed by Plaintiff between May 26, 2016
and December 19, 2019 and attached those grievances as an exhibit to his
Declaration. [Id. at ¶¶ 11-12; Doc. 20-9]. During that time, Plaintiff did not
file a written grievance pursuant to the Detention Center’s policy against

either Defendant Holden or Defendant Laughter. [Id. at ¶ 13]. In the three
grievances Plaintiff filed during that time, he wrote, in full, (1) “need to talk to
mrs stroup an my lawery \\assapppp// thanks james darin sisk;” (2) “please

read he following;” and (3) “nee my meads please.” [Doc. 20-9 at 2-4 (errors
uncorrected)].
IV. DISCUSSION

A. Failure to Exhaust Administrative Remedies
The Defendants argue that the Plaintiff failed to exhaust his
administrative remedies prior to filing this action and, therefore, that his

Amended Complaint should be dismissed pursuant to the Prison Litigation
Reform Act (“PLRA”). [Doc. 20 at 4-6 (citing 42 U.S.C. § 1997e(a))].
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. §
1997e(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 Supreme Court has highlighted that 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 Fed. App’x 845, 846 (4th Cir. 2011). In Anderson v.
XYZ Correctional Health Servs., 407 F.3d 674 (4th Cir. 2005), the Fourth
Circuit determined 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.

Id. at 683.
Here, the uncontroverted forecast of evidence shows that Plaintiff did
not file a written grievance pursuant to the Detention Center’s grievance
policy against Defendant Holden or Defendant Laughter. While Plaintiff filed
grievances regarding his need for his medications and his need to talk to his
lawyer, he never filed a grievance complaining of excessive force by
Defendants. To be sure, in his Amended Complaint, Plaintiff admits that he
only “verbally lodged a grievance with [Defendants’] Superior Chief David
Mahoney the Sheriff” that “Kevin Holden assaulted [Plaintiff] while being
detained, choked and slammed [him] against the wall.” [Doc. 9 at 7]. And,
as noted, Plaintiff offered no evidence to rebut Defendants’ showing that
Plaintiff failed to exhaust his administrative remedies before filing this
lawsuit. Without such evidence, the Plaintiff has not presented a sufficient
forecast of evidence to survive the Defendants’ Motion for Summary
Judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (the

plaintiff can survive a motion for summary judgment by providing sufficient
evidence so that “a reasonable jury could return a verdict for [the plaintiff].”)
Accordingly, the Defendants’ Motion for Summary Judgment will be granted

on this ground. Because dismissals based on the failure to exhaust
administrative remedies are without prejudice, the Court will also address the
other grounds for summary judgment asserted by Defendants. See 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.”).
B. Heck v. Humphrey

Defendant Holden argues that Plaintiff’s claim against him is barred by
Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States
Supreme Court held as follows:
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a §
1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a
state tribunal authorized to make such determination,
or called into question by a federal court’s issuance
of a writ of habeas corpus, 28 U.S.C. § 2254. A claim
for damages bearing that relationship to a conviction
or sentence that has not been so invalidated is not
cognizable under § 1983. Thus, when a state
prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of
the plaintiff would necessarily imply the invalidity of
his conviction or sentence; if it would, the complaint
must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has
already been invalidated. But if the district court
determines that the plaintiff’s action, even if
successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff,
the action should be allowed to proceed, in the
absence of some other bar to the suit.

Id. at 486-87 (footnotes omitted; emphasis added). Plaintiff’s claim against
Defendant Holden, therefore, is barred by Heck if a judgment in favor of
Plaintiff would “necessarily imply the invalidity” of Plaintiff’s conviction for
malicious conduct by a prisoner. Ballenger v. Owens, 352 F.3d 842, 846
(4th Cir. 2003).
The offense of malicious conduct by a prisoner under N.C.G.S. § 14-
258.4 includes the following elements: (1) the defendant threw, emitted, or
caused to be used as a projectile a bodily fluid or excrement at the victim;
(2) the victim was a State or local government employee; (3) the victim was
in performance of his or her State or local government duties at the time the
fluid or excrement was released; and (4) the defendant acted knowingly and
willfully and was in the custody of any law enforcement officer. State v.
Heavner, 741 S.E.2d 897, 901 (N.C. Ct. App. 2013). Self-defense is a
defense to this offense. See State v. Harper, 212 N.C. App. 693 (2011)

(unpublished decision) (granting new trial where trial court failed to instruct
jury on the issue of self-defense where § 14-258.4 defendant’s testimony
supported such instruction).

Plaintiff was convicted for malicious conduct by a prisoner under
N.C.G.S. § 14-258.4 for spitting on Defendant Holden. Because self-
defense is a defense to this offense, Plaintiff’s claim that Defendant Holden
used excessive force in subduing Plaintiff, if proved, necessarily would imply

the invalidity of Plaintiff’s conviction for malicious conduct against Holden.
See Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996) (holding Heck
barred prisoner’s § 1983 claim against officer for excessive force while

apprehending the plaintiff where the plaintiff was convicted of battery of the
officer during the course of the apprehension). See also Cummings v. City
of Akron, 418 F.3d 676, 682-83 (6th Cir. 2005) (finding Heck barred plaintiff’s
excessive force claim where struggle between plaintiff and officer defendants

gave rise to plaintiff’s assault conviction and the excessive force claim and
assault conviction were “inextricably intertwined”).
As such, because Plaintiff’s conviction has not been overturned, his §

1983 claim for excessive force against Holden is barred by Heck.
C. Use of 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.
The uncontroverted evidence before the Court leaves no room for
doubt that the force used on Plaintiff was reasonable and well within

constitutional limits. Plaintiff was cursing, yelling, and threatening Defendant
Holden and outwardly manifesting an intention to assault Holden. Despite
several attempts by Holden to calm Plaintiff without the use of force, Plaintiff

persisted in his aggressive and combative behavior. Defendant Holden’s
use of force on Plaintiff was objectively reasonable as a matter of law under
these circumstances. Furthermore, any force that was used by Defendant

Laughter is assisting to control Plaintiff was also objectively reasonable.
Ultimately, Plaintiff could be subdued only with the concerted effort of three
people. As such, there is no genuine issue of material fact as to Plaintiff’s
excessive force claim and it will be dismissed on those grounds.

D. 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).
Here, because Plaintiff has not forecasted evidence that Defendants
violated a constitutional right, Defendants are entitled to qualified immunity
on Plaintiffs individual capacity claims. As such, Defendants’ Motion for
Summary Judgment based on qualified immunity will be granted.
V. CONCLUSION
For the reasons stated herein, the Court will grant Plaintiff's motion for

summary judgment.
ORDER
IT IS, THEREFORE, ORDERED that the Defendants’ Motion for
Summary Judgment [Doc. 19] is GRANTED and this action is hereby
DISMISSED with prejudice.
The Clerk is instructed to terminate this action.
IT IS SO ORDERED.

Signed: December 29, 2020

Martifi Reidinger ey
Chief United States District Judge Ale

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10256597. Public record. Not legal advice.