Jasmaine a/k/a Duane L. Fox v. Gazoo

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:18-cv-00533-MR

JENNIFER ANN JASMAINE, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

EDWARD GAZOO, et. al., )

)

Defendants. )

___________________________ )

THIS MATTER comes before the Court on Defendants’ Motion for

Summary Judgment. [Doc. 39].

I. PROCEDURAL BACKGROUND

On October 2, 2018, Plaintiff Jennifer Ann Jasmaine, a/k/a Duane L.

Fox (“Plaintiff”),1 proceeding pro se, filed this action pursuant to 42 U.S.C. §

1983 based on the alleged failure to protect Plaintiff in violation of her rights

under the Eighth Amendment while she was incarcerated at Lanesboro

Correctional Institution (“Lanesboro”) in Polkton, North Carolina.2 Plaintiff

named the following individuals as Defendants in this matter: (1) Edward

1 Plaintiff was born male and identifies as a transgender female. [See Doc. 1 at ¶ 23; see

Doc. 41-5 at ¶ 5: Gazoo Dec.].

2 Lanesboro has since been converted to a women’s prison and renamed Anson

Correctional Institution.

Gazoo, identified as the Lanesboro Transportation Coordinator; (2) FNU

Lambert, identified as Lanesboro Assistant Unit Manager; (3) Kevin Ingram,

identified as a Lanesboro Unit Manager; (4) John Herring, identified as the

Lanesboro Superintendent; (5) Reuben Young, identified as an Assistant

Secretary for the North Carolina Department of Public Safety (NCDPS); (6)

Gary Junker, PhD, identified as the NCDPS Director of Behavioral Health;

(7) Marvella Bowman, identified as a Lanesboro Psychologist; (8) Johnnie

McCullers, identified as a Lanesboro Case Manager; and (9) Stephanie

Hubbard, identified as an NCDPS Classification and Interstate Corrections

Compact Coordinator. [Doc. 1 at 2-6].

Plaintiff, as a transgender female, alleges that Defendants failed to

protect her from gang member inmates who threatened to attack her no

matter where she was incarcerated in North Carolina. [See e.g., Doc. 1 at ¶

17]. Plaintiff alleges that she told each Defendant in writing that “the gang

‘Bloods’ had put a hit on her (S.O.S.) stab on sight” and that each Defendant

failed to act to protect her after being “made aware that [Plaintiff was] likely

to be seriously harmed.” [See e.g., Doc. 1 at ¶¶ 13, 18-19]. Plaintiff,

however, does not allege that she was attacked at Lanesboro or otherwise

after issuing these warnings to Defendants.

Plaintiff’s Complaint survived initial review under 28 U.S.C. §§ 1915(e)

and 1915A as to all Defendants. [Doc. 10]. Defendant Lambert was

dismissed as a Defendant in this matter for Plaintiff’s failure to timely serve

him. [Docs. 43, 46]. On July 10, 2020, Defendants moved for summary

judgment. [Doc. 39]. Defendants argue that summary judgment should be

granted because Plaintiff failed to exhaust administrative remedies, because

Defendants did not fail to protect Plaintiff under the Eighth Amendment, and

because qualified immunity bars Plaintiff’s claims against Defendants. [Doc.

40].

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. 42]. The Plaintiff was

specifically advised that she “may not rely upon mere allegations or denials

of allegations in her pleadings to defeat a summary judgment motion.” [Id.

at 2]. Rather, she must support her 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))]. 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 Declarations of Defendants Ingram, Gazoo, McCullers, Herring,

Junker, and Bowman; verified discovery responses by Defendants Hubbard

and Young; Plaintiff’s grievance records; letters written by Plaintiff; and

certain prison records. [Docs. 41-1 through 41-14; Doc. 48-2, see Doc. 48-

1].

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

The uncontroverted forecast of evidence shows the following.

From approximately March 28, 2018 until May 1, 2019, Plaintiff was in

Restrictive Housing for both administrative and disciplinary purposes, at

different times and, therefore, isolated from other offenders during all times

relevant to this matter. [Doc. 41-1 at ¶ 27: Ingram Dec.; see Doc. 41-5 at ¶¶

7, 13, 18; Doc. 41-7 at 2]. While Plaintiff was in Restrictive Housing,

Defendant Gazoo, the Lanesboro Program Director in the Classification

Section, was made aware that Plaintiff wanted to request transfer through

the Interstate Corrections Compact (ICC).3 [Doc. 41-5 at ¶ 3, 7]. Plaintiff

told Gazoo that she could not return to the general population because of

threats by other inmates. [Id. at ¶ 8]. Gazoo explained the ICC transfer

process to Plaintiff. [Id. at ¶ 9]. Thereafter, Plaintiff made a request for an

out-of-state transfer through the ICC transfer program. [Id. at ¶ 10].

On August 27, 2018, Plaintiff submitted a grievance stating that she

has been beaten or assaulted at almost every facility at which she has been

housed. Plaintiff complained that the Blood gang had put a “stab on sight”

hit on her no matter where she is housed. [Doc. 41-2 at 1]. Plaintiff stated

that she requested an ICC transfer to protect her from “an identifiable threat

of harm after consideration of all available housing alternatives.” [Id. at 2].

Defendant Ingram, the Correctional Housing Unit Manager, rejected this

grievance for Plaintiff’s failure to follow applicable Administrative Remedy

Procedure.4 [See Doc. 41-1 at ¶¶ 2-3, 13].

3 The ICC enables participating states to enter into agreements for cooperative care,

treatment, and housing of offenders sentenced to or confined in prisons and other

correctional institutions. North Carolina is a participant in the ICC. See N.C. Gen. Stat.

§ 148-119, et seq.

4 The rejection record, however, does not state what administrative procedure Plaintiff

allegedly failed to follow. [See Doc. 41-2 at 3]. Defendant Ingram states that this

grievance was also rejected because Plaintiff had another active grievance. [Doc. 41-1

at ¶ 13]. The forecast of evidence, however, does not reflect any other active grievances

at this time.

On September 11, 2018, Plaintiff filed another grievance substantially

similar to the previous grievance and requesting the same relief. [Doc. 41-3

at 1-2]. The Step One Unit Response to this grievance, prepared by

Defendant Ingram, advised Plaintiff that she had failed to provide the

name(s) of the individual(s) who were planning to assault Plaintiff, and,

without this information, Plaintiff’s grievance could not be thoroughly

investigated. [Id. at 3]. Defendant Ingram also advised Plaintiff that she

was protected from assault by virtue of her Restrictive Housing status. [Id.].

Plaintiff appealed the Step One decision, but without providing the additional

requested information. [See id. at 4; Doc. 41-1 at ¶ 20]. At Step Two, Plaintiff

was advised that she “will need to provide more information about this

matter” and it was concluded that “[n]o further action is required.” [Id.].

Plaintiff appealed to Step Three, again without providing the additional

information. [See Doc. 41-3 at ¶ 20]. At Step Three, the grievance officer

concluded that “[n]o further action is warranted” and dismissed the

grievance. [Id. at 5]. Final disposition of Plaintiff’s September 11, 2018

grievance occurred on October 30, 2018. [See id. at 5].

On September 24, 2018, Plaintiff submitted another grievance, which

was similar to the two previous grievances, including the September 11

grievance that remained active at that time. [See Doc. 41-4 at 1-3]. In this

grievance, however, Plaintiff also complained that she had expressed her

concerns to her Unit Manager, Assistant Unit Manager, Case Manager, the

Superintendent, and “Mental Health,” with no response. [Id. at 3]. Plaintiff

again sought transfer pursuant to the ICC. [Id.]. Before receiving a response

on this grievance, Petitioner filed the instant action. [See Doc. 1]. On

October 17, 2018, this grievance was rejected because Plaintiff already had

an active grievance in process, namely the September 11 grievance, in

violation of Administrative Remedy Procedure Section .0300 of the NCDPS

Policy and Procedures. [Id. at 4, ¶ 24].

Defendant Ingram addressed Plaintiff’s concerns for her safety of

which he was aware. [Doc. 41-1 at ¶ 26]. Defendant Ingram also relayed

Plaintiff’s allegations of a gang hit to the correctional staff tasked with

investigating such matters. [Id. at ¶ 28]. Defendant Ingram believed that

other staff had received and addressed Plaintiff’s request for an Interstate

Corrections Compact transfer. [Id. at ¶ 30].

Defendant Herring, the Superintendent of Lanesboro at the relevant

times, has no knowledge of Plaintiff’s identification as transgender, no

knowledge of assaults by other offenders on Plaintiff at Lanesboro, no

knowledge of threats against Plaintiff by other inmates, no recollection of

having been advised by Plaintiff or anyone else regarding threats to her

safety, and no recollection of having received or reviewed any written

correspondence from Plaintiff requesting transfer or other protection. [Doc.

41-9 at ¶¶ 3, 7-11, 13: Herring Dec.]. Further, as Superintendent, Defendant

Herring had no ability to direct that any offender be placed on the ICC list for

potential transfer. [Id. at ¶ 12]. As such, Defendant Herring was not involved

in any decisions related to any requests by Plaintiff to be placed on the ICC

list. [Id. at ¶ 13].

Defendant McCullers, the Program Supervisor at Lanesboro at the

relevant times, has no knowledge of assaults by other offenders on Plaintiff

at Lanesboro, no knowledge of threats against Plaintiff by other inmates, no

recollection of having been advised by Plaintiff or anyone else regarding

threats to her safety, and no recollection of having received or reviewed any

written correspondence from Plaintiff requesting transfer or other protection.

[Doc. 48-2 at ¶¶ 3, 7-10: McCullers Aff.]. Further, as Program Manager,

Defendant McCullers was not involved in any control status reviews or any

housing assignments, including requests for protective custody, or any

classification decisions related to Plaintiff. [Id. at ¶¶ 11-13].

On September 27, 2018, Defendant Junker, the Director of

Behavioral Health for the NCDPS at the relevant times, received a letter from

Plaintiff in which Plaintiff requested that she be transferred out-of-state for

her safety. [Doc. 41-10 at ¶¶ 3, 7: Junker Dec.; see Doc. 41-11]. When he

received Plaintiff’s letter, Defendant Junker routed it to the appropriate

persons in prison administration for review. [Id. at ¶ 9; see Doc. 41-11 at 3-

4]. John Beatty, ICC Case Manager, confirmed that Plaintiff was being

considered for an ICC transfer. [Id. at ¶ 10; Doc. 41-11 at 5]. Thereafter,

Defendant Junker completed the mental health portion of the ICC Medical

History Form, which merely provides medical information related to the

applicant. [Id. at ¶¶ 11-12]. Defendant Junker, however, in his position as

Director of Behavioral Health, did not have control over the ICC transfer

process. [Id. at ¶ 14]. Furthermore, as Director of Behavioral Health,

Defendant Junker had no control over or participation in Plaintiff’s housing

status, control status reviews, including requests for protective custody, or

classification reviews. [Id. at ¶ 16].

On September 28, 2018, Defendant Bowman, a Corrections

Psychological Services Coordinator at Lanesboro, received a written

communication from Plaintiff in which she expressed concern for her safety

and claimed that she was being targeted for assault by the Bloods gang.

[Doc. 41-12 at ¶¶ 2-3, 10-11: Bowman Dec.]. When Defendant Bowman

received the communication from Plaintiff, she immediately communicated

Plaintiff’s concerns to custody staff in accordance with NCDPS policy. [Id.

at ¶ 12]. In short, Defendant “promptly and appropriately addressed

[Plaintiff’s] safety concerns.” [Id. at ¶ 13].

Defendant Hubbard, as the NCDPS Divisional Classification

Coordinator at the relevant times, served as the ICC Coordinator and was

responsible for maintaining certain records related to the ICC transfer

program. [Doc. 41-13 at 2: Hubbard Responses]. When Defendant Hubbard

receives requests to participate in the ICC transfer program, she informs the

offender in writing that his/her request has been received and is under

review. [Id. at 4]. Defendant Hubbard also informs the offender that his/her

name has been placed on the waiting list for exchange, which occurs only if

the receiving state approves the transfer. [Id. at 4]. Hubbard then requests

approval from the appropriate authorities in the NCDPS and the receiving

state. [Id. at 4]. Defendant Hubbard does not recall having any interactions

with Plaintiff before September 9, 2018, [Id. at 3], and the forecast of

evidence reflects nothing regarding any subsequent interactions or any

involvement by Hubbard as alleged by Plaintiff.

Defendant Young, as the NCDPS Interim Chief Deputy Secretary of

Adult Correction and Juvenile Justice during the relevant times, did not

receive reports from inmates fearing for their safety. [Doc. 41-15 at 1, 3:

Young Responses]. Further, Defendant Young has never interacted with the

Plaintiff. [Id. at 3].

Finally, contrary to Plaintiff’s allegations, there is no evidence before

the Court that that Plaintiff had been assaulted by other offenders at almost

every prison facility at which Plaintiff has been housed. Moreover, there is

also nothing in the record that any Defendant had any knowledge of any such

assault, if any occurred. [Doc. 41-1 at ¶ 25; Doc. 41-5 at ¶ 21; Doc. 41-9 at

¶ 14; Doc. 48-2 at ¶ 14; Doc. 41-10 at ¶ 17; Doc. 41-12 at ¶ 14; Doc. 41-13

at 5; Doc. 41-15 at 4-5].

IV. DISCUSSION

A. Failure to Exhaust Administrative Remedies

The Defendants argue that the Plaintiff failed to exhaust her

administrative remedies prior to filing this action and, therefore, that her

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’s

September 11, 2018 grievance was not exhausted until October 30, 2018,

nearly a month after Plaintiff filed the instant action. And, as noted, Plaintiff

offered no evidence to rebut Defendants’ showing that Plaintiff failed to

exhaust her 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. Failure to Protect

Claims under 42 U.S.C. § 1983 based on an alleged failure to protect

fall within the Eighth Amendment’s prohibition against cruel and unusual

punishment. Under the Eighth Amendment, “prison officials have a duty …

to protect prisoners from violence at the hands of other prisoners.” Farmer

v. Brennan, 511 U.S. 825, 833 (1994) (quotation marks omitted). “It is not,

however, every injury suffered by one prisoner at the hands of another that

translates into constitutional liability for prison officials responsible for the

victim’s safety.” Id. at 834.

To be found liable under the Eighth Amendment based on a failure to

prevent harm, the prisoner first “must show that he was incarcerated under

conditions posing a substantial risk of serious harm.” Id. (citation omitted).

Next, the prisoner must show that the prison official had a sufficiently

culpable state of mind. Id. (quotation marks and citation omitted). “In prison-

conditions cases, that state of mind is one of deliberate indifference to inmate

health or safety.” Id. (quotation omitted). “Deliberate indifference” is

measured subjectively. The Supreme Court has described the standard as

follows:

[A] prison official cannot be found liable under the

Eighth Amendment for denying an inmate humane

conditions of confinement unless the official knows of

and disregards an excessive risk to inmate health or

safety; the official must both be aware of facts from

which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw

the inference…. The Eighth Amendment does not

outlaw cruel and unusual “conditions”; it outlaws

cruel and unusual “punishments.” … But an official’s

failure to alleviate a significant risk that he should

have perceived but did not, while no cause for

commendation, cannot under our cases be

condemned as the infliction of punishment.

Farmer, 511 U.S. at 837-38 (emphasis added). A prison official is not liable

if he knew the underlying facts but believed, even if unsoundly, that the risk

to which the facts gave rise was insubstantial or nonexistent. Farmer, 511

U.S. at 837. Further, “prison officials who actually knew of a substantial risk

to inmate safety may be found free from liability if they responded reasonably

to the risk, even if the harm ultimately was not averted.” Id. at 844.

Here, Defendants’ uncontroverted forecast of evidence establishes

that there is no genuine issue of material fact on Plaintiff’s failure to protect

claim. First, the uncontroverted forecast of evidence does not show that

Plaintiff was incarcerated under conditions posing a substantial risk of

serious harm. See Farmer, 511 U.S. at 834. During the relevant times,

Plaintiff was housed in Restrictive Housing and was isolated from other

offenders. As such, while Plaintiff may have subjectively feared attack by

other offenders, her conditions of confinement did not support the existence

of a substantial risk of serious harm. Second, the uncontroverted forecast of

evidence fails to show that any Defendant had a sufficiently culpable state of

mind, that is, one of deliberate indifference to Plaintiff’s health or safety. See

id. Because Plaintiff failed to rebut Defendants’ forecast of evidence that

Plaintiff was not incarcerated under conditions posing a substantial risk of

serious harm, the forecast of evidence necessarily forecloses finding that

Defendants could have been aware of facts from which they could infer that

a substantial risk of serous harm existed. See Farmer, 511 U.S. at 837-38.

In any event, Defendants’ forecast of evidence demonstrates that any

Defendant who had knowledge of Plaintiff’s subjective complaints and/or

fears for her safety responded appropriately to that information.

Furthermore, while serious injury is not necessarily required to sustain

an Eighth Amendment failure to protect claim, Plaintiff neither alleges nor

forecasts any evidence of having suffered any injury after her alleged

warnings to Defendants. See Brown v. Dep’t of Public Safety and

Correctional Services, 383 F.Supp.3d 519, 548 (D.Md. May 13, 2019)

(granting summary judgment for defendant prison officials where prisoner

plaintiff forecast no evidence of harm resulting from defendants’ alleged

deliberate indifference to serious risk of harm); cf. Woodhous v. Com. of Va.,

487 F.2d 889 (4th Cir. 1973) (implying prisoner’s legitimate fear of attack

may be sufficient to maintain failure to protect claim).

In sum, there is no genuine issue of material fact as to Plaintiff’s failure

to protect claim and it will be dismissed on those grounds.

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).

Here, because Plaintiff has not forecasted evidence that Defendants

violated a constitutional right, Defendants are entitled to qualified immunity

on Plaintiff’s 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 Defendants’ motion

for summary judgment.

O R D E R

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

Summary Judgment [Doc. 39] is GRANTED and this action is hereby

DISMISSED with prejudice.

The Clerk is instructed to terminate this action.

IT IS SO ORDERED.

Signed: January 25, 2021

Martiff Reidinger ey

Chief United States District Judge MES

20