Jones v. Parry

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:19-cv-00078-MR

GEORGE JONES, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

BRIAN D. PARRY, )

)

Defendant. )

___________________________ )

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

Summary Judgment. [Doc. 34].

I. PROCEDURAL BACKGROUND

The Plaintiff George Jones, proceeding pro se, brings this action

pursuant to 42 U.S.C. § 1983 for the violation of his civil rights while

incarcerated at the Alexander Correctional Institution (“Alexander”). [Doc.

1]. The Complaint asserted various claims against Alexander employee

Officer Brian D. Parry in his individual and official capacities stemming from

Parry’s alleged use of excessive force on Plaintiff. [Id.]. Plaintiff alleged as

follows. On December 10, 2018, while he was recovering from prostate

cancer therapy, Plaintiff requested to watch television. In response, Officer

Parry harassed, taunted, body shamed, and assaulted Plaintiff, breaking

Plaintiff’s left leg and “disrupting [Plaintiff’s] care and wellness.” [Doc. 1 at

3].

The Complaint survived this Court’s initial review under 28 U.S.C. §§

1915(e)(2) and 1915A and Plaintiff was allowed to proceed with his Eighth

Amendment excessive force claim. [Doc. 14]. On October 19, 2020, Officer

Parry moved for summary judgment of Plaintiff’s Complaint pursuant to Rule

56 of the Federal Rules of Civil Procedure. [Doc. 34]. In support of his

summary judgment motion, Officer Parry submitted a memorandum; a

Statement of Material Facts; his own Declaration; the Affidavits of

Christopher L. Poteat, Regina Jordan, and Jennifer Tilley; various prison

records and policies; and video footage of the alleged incident. [Docs. 35,

36, 37-1 through 37-8, 45-1].

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. 39]. Plaintiff timely filed a

response to Officer Parry’s summary judgment motion consisting of Plaintiff’s

Affidavit and certain medical records. [Docs. 42, 42-1].

This matter is now ripe for adjudication.

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). Namely, 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. Facts, however, “must be

viewed in the light most favorable to the nonmoving party only if there is a

‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380

(2007). As the Supreme Court has emphasized,

“[w]hen the moving party has carried its burden under

Rule 56(c), the opponent must do more than simply

show there is some metaphysical doubt as to the

material facts …. 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.’”

Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 586-87, 106 S. Ct. 1348 (1986)

(footnote omitted). “[T]he mere existence of some

alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be

no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-28, 106 S. Ct.

2505 (1986). When opposing parties tell two

different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version

of the facts for purposes of ruling on a motion for

summary judgment.

Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007).

III. FACTUAL BACKGROUND

The forecast of evidence, in the light most favorable to the non-movant,

is as follows.1

At the relevant times, Officer Parry was a correctional officer at

Alexander. [Doc. 37-6 at ¶ 3: Parry Aff.]. On December 10, 2018, at

approximately 5:00 p.m., Plaintiff was inside Main Medical recuperating from

brachytherapy.2 [Id. at ¶ 5; Doc. 42 at 5: Jones Aff. Ex.]. He had a catheter

in place. [Doc. 42 at ¶ 19]. Plaintiff asked Parry if Plaintiff could come out

of his cell and watch television. [Doc. 37-6 at ¶ 6]. Parry told Plaintiff that

1 A camera captured what occurred inside of Plaintiff’s medical cell. There were, however,

no cameras in the medical area, so footage of what happened outside of Plaintiff’s cell is

unavailable. [See Doc. 37-5 at 7]. As noted, Officer Parry’s forecast of evidence includes

the video footage of the incident, which contradicts the Plaintiff’s forecast of evidence,

particularly Plaintiff’s evidence as to Plaintiff’s conduct immediately preceding Officer

Parry’s use of force. Because a plaintiff cannot defeat summary judgment by presenting

evidence that is blatantly contradicted by the record as a whole, the Court cannot adopt

Plaintiff’s account of the incident for the purpose of ruling on this motion. See Scott, 550

U.S. at 380, 127 S. Ct. at 1776. The Court does, however, consider Plaintiff’s forecast of

evidence relative to what occurred outside the view of the camera.

2 Brachytherapy is a form of radiation therapy used to treat prostate cancer which involves

the placing radioactive sources in the prostate gland.

Parry did not know if Plaintiff could come of his cell because Plaintiff was in

an isolation room. [Id. at ¶ 7]. Parry asked the nurse if Plaintiff could come

out of his cell to watch television and the nurse said that he could. [Id. at ¶

8; Doc. 37-7 at ¶¶ 6-7: Jordan Aff.; Doc. 37-8 at ¶¶ 6-7: Tilley Aff.]. As Parry

opened Plaintiff’s door, Plaintiff pushed the door open, stating that he “was

not a seg inmate.” [Id. at ¶ 9; see Doc. 37-7 at ¶¶ 8-9; Doc. 37-8 at ¶¶ 8-9].

In the medical area, outside the view of the camera, Parry explained to

Plaintiff why Parry did not allow Plaintiff out of his room right away. [Id. at ¶

10; see Doc. 37-7 at ¶ 10]. Plaintiff raised his voice at Parry several times

and Parry asked Plaintiff three times if Plaintiff wanted to watch television.

[Id. at ¶¶ 11-12; see Doc. 37-7 at ¶ 10]. Plaintiff stood in the doorway with a

fist balled up, stating that he “was not a fucking seg inmate.” [Id. at ¶ 13; see

Doc. 37-8 at ¶ 11]. Because Plaintiff was speaking to Parry in an aggressive

manner, Parry told Plaintiff that Plaintiff was not going to watch television.

[Id. at ¶ 14]. Parry gave Plaintiff a direct order to get back inside his room

and Plaintiff refused. [Id. at ¶ 17]. Parry pushed Plaintiff back inside of the

room and Plaintiff fell to the floor landing on his bottom and right elbow. [Doc.

45-1]. Plaintiff immediately jumped up while Parry appears to be directing

Plaintiff to stay where he is. [Id.]. Plaintiff moved toward Parry in an

aggressive manner, trying to get out of the room. Parry then put his hands

on Plaintiff’s chest and right upper arm. [Id.]. Plaintiff again came at Parry.

Parry then put his left hand at the base of Plaintiff’s neck and pushed Plaintiff

back into the cell. [Id.]. Plaintiff immediately and aggressively rushed at

Parry with his right arm cocked, leaving the cell and the view of the camera.

[Id.; see Doc. 37-6 at ¶¶ 18-19]. To prevent an assault and to regain control

of Plaintiff, Parry stepped forward and grabbed the front of Plaintiff’s shirt

and placed his right hand on Plaintiff’s shoulder. [Doc. 37-6 at ¶ 20]. Plaintiff

swung at Parry. [Id. at ¶ 21; see Doc. 37-7 at ¶ 12; see Doc. 37-8 at ¶ 13].

Parry then put Plaintiff on the ground, again to regain control of the Plaintiff.

[Id. at ¶ 22; Doc. 37-7 at ¶ 13; Doc. 37-8 at ¶ 14]. Apparently, in regaining

control of Plaintiff, Parry placed his left knee on the back of Plaintiff’s left calf.

[Doc. 42 at ¶ 10]. Plaintiff claims that Parry then grabbed Plaintiff’s left foot

and pulled it upwards, resulting in the two fractures. [Id.]. In his Witness

Statement, Parry states that, once he got Plaintiff to the floor, Plaintiff refused

to put his arms behind his back. [Doc. 37-5 at 10]. After Parry told Plaintiff

to stop resisting and to put his hands behind his back, Parry was finally able

to get Plaintiff handcuffed. [Id.]. Other correctional staff also assisted with

gaining control of Plaintiff. [Doc. 37-6 at ¶ 23].

During the above-described events, Parry perceived Plaintiff’s refusal

to follow orders and aggressive resistance as a threat to staff safety and the

security of the facility. [Id. at ¶ 24]. Parry used only that amount of force

necessary to achieve the correctional objectives of preventing assault, to

control and subdue Plaintiff, and to ensure Plaintiff’s compliance with lawful

orders. [Id. at ¶ 26]. Furthermore, Parry ceased using force once there was

no longer a need for it. [Id. at ¶ 27].

After the incident, Plaintiff was medically assessed and sent to

Catawba Valley Medical Center (CVMC) for further evaluation. [Doc. 37-1

at ¶ 32: Poteat Aff.]. Plaintiff was diagnosed with a displaced left tibial shaft

fracture and a minimally displaced left proximal fibula fracture. [Doc. 42 at

5-6]. The tibial fracture was surgically repaired with a steel rod. [Id. at 6-7,

9; see id. at ¶¶ 14, 16].

During the incident, Plaintiff claims to have defecated himself twice and

that he had to clean himself while at the hospital. [Doc. 42 at ¶ 15]. Plaintiff

denies doing anything to “deserve this type of treatment from Officer Parry.”

[Id. at ¶ 17]. Plaintiff claims that he had worked his way up to having been

approved for work release and Plaintiff “wasn’t going to do anything to

jeopardize that status.” [Id. at ¶ 18]. Plaintiff did not lose his work release

status after the incident. [Id.]. Since the incident, Plaintiff remains unable to

urinate without a catheter and cannot work because he cannot stand for long

periods of time. [Id. at ¶¶ 16, 19].

IV. DISCUSSION

A. Sovereign Immunity

Plaintiff sues Officer Parry in his individual and official capacity. [Doc.

1 at 1]. 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, Officer

Parry is entitled to summary judgment on Plaintiff’s official capacity claim.

B. Eighth Amendment

The Eighth Amendment prohibits the infliction of “cruel and unusual

punishments,” U.S. CONST. amend. VIII, and protects prisoners from the

“unnecessary and wanton infliction of pain,” Whitley v. Albers, 475 U.S. 312,

319 (1986). To establish an Eighth Amendment claim, an inmate must

satisfy both an objective component – that the harm inflicted was sufficiently

serious – and a subjective component – that the prison official acted with a

sufficiently culpable state of mind. Williams v. Benjamin, 77 F.3d 756, 761

(4th Cir. 1996).

This subjective standard requires proof of malicious or sadistic action

by a prison official to make out an excessive force claim. This is because

prison “[o]fficials are entitled to use appropriate force to quell prison

disturbances.” Williams, 77 F.3d at 761. “Because officials must act ‘in

haste, under pressure, and frequently without the luxury of a second chance,’

deliberate indifference is not a sufficiently rigorous standard.” Id. (citing

Whitley, 475 U.S. at 320). “Rather, in these circumstances, in order to make

out an Eighth Amendment claim, a prisoner must demonstrate that officials

applied force maliciously and sadistically for the very purpose of causing

harm.” Id. (internal quotations and citation omitted).

Here, Plaintiff contends that Officer Parry violated Plaintiff’s rights

under the Eighth Amendment by using excessive force on Plaintiff. The

forecast of evidence before the Court, however, leaves no genuine issue of

material fact for trial. The video evidence shows that Plaintiff charged Officer

Parry in a quick and aggressive manner, with his arm cocked, after having

refused multiple direct orders to return to his cell and after Officer Parry

attempted to use relatively minimal force to get Plaintiff to return to and stay

inside of his cell. Moreover, the video evidence reflects that Officer Parry

was forced to “act in haste, under pressure, and [ ] without the luxury of a

second chance.” See Williams 77 F.3d at 761 (internal quotation marks and

citation omitted). While it is certainly unfortunate that Plaintiff’s leg was

broken in the course of Officer Parry’s efforts to quell Plaintiff’s serious and

significant aggression, Plaintiff’s conduct left no room for anything but the

use of force. And Plaintiff has failed to forecast sufficient evidence that

Officer Parry used force “maliciously and sadistically for the very purpose of

causing harm.” Id. at 761 (internal quotation marks and citation omitted). As

such, the Court will grant Defendant’s summary judgment on Plaintiff’s

individual capacity claim as well.

As such, the Court will grant Defendant’s Motion for Summary

Judgment.

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 Officer Parry

violated a constitutional right, Officer Parry is also entitled qualified immunity

on Plaintiff’s individual capacity claim. The Court, therefore, grants summary

judgment for Officer Parry on this ground as well.

VI. CONCLUSION

For all the foregoing reasons, Defendant Parry’s motion for summary

judgment is granted.

ORDER

IT IS, THEREFORE, ORDERED that Defendant Parry’s Motion for

Summary Judgment [Doc. 34] is GRANTED.

The Clerk is respectfully instructed to terminate this action.

IT IS SO ORDERED. Signed: April 6.2021

Martifi Reidinger ey

Chief United States District Judge “AES

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