McCarthy v. Cardella

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:19-cv-00193-MR

KEITH MCCARTHY, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

APRIL CARDELLA, et al., )

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on the pro se Plaintiff’s Motions for

Summary Judgment [Docs. 36, 37] and Defendants’ Motion for Summary

Judgment [Doc. 38].

I. BACKGROUND

The incarcerated Plaintiff Keith McCarthy, proceeding pro se, filed this

action pursuant to 42 U.S.C. § 1983 addressing incidents that allegedly

occurred at the Union County Jail (“Jail”) while he was a pretrial detainee.1

He names as Defendants: April Cardella and Christian Green, Union County

1 The Plaintiff was charged with first degree murder, robbery with a dangerous weapon,

and concealing/failing to report death. [See Doc. 1: Complaint Ex at 15]. The Plaintiff is

currently incarcerated at the Avery-Mitchell Correctional Institution for second-degree

murder.

Sheriff’s Office (“UCSO”) detention officers;2 and Eddie Cathey, the Union

County Sheriff. The Complaint passed initial review on claims that

Defendants Cardella and Green used excessive force and that Defendant

Cathey was deliberately indifferent to the Plaintiff’s serious medical needs

and retaliated against him.3 [Doc. 9: Order on Initial Review].

Now the parties have filed Motions for Summary Judgment.4 The Court

notified the Plaintiff of the opportunity to respond to Defendants’ Motion and

to present evidence in opposition pursuant to Fed. R. Civ. P. 56. [Doc. 43:

Roseboro5 Order]. The Plaintiff filed a Response to the summary judgment

motion.6 [Doc. 51: Plaintiff’s MSJ Response]. The parties did not file replies

2 Defendants Green and Cardella are no longer employed by UCSO.

3 This case was assigned to Judge Frank D. Whitney at that time.

4 The Plaintiff’s Motion for Summary Judgment against Defendants Cardella and Green

[Doc. 36] will be referred to as “Plaintiff’s MSJ 1” and the Plaintiffs Motion for Summary

Judgment against Defendant Cathey [Doc. 37] will be referred to as “Plaintiff’s MSJ 2.”

The Court will seal, sua sponte, those summary judgment Exhibits filed by the pro se

Plaintiff containing confidential information pursuant to the Protective Order that was

entered in this case. [See Doc. 28: Protective Order].

5 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

6 It appears that the Plaintiff attempts to raise a new due process claim in his summary

Judgment Response. [Doc. 51: Plaintiff’s MSJ Response at 11]. However, this claim was

not included in the Complaint and thus was not subjected to initial review. See generally

Fed. R. Civ. P. 15 (addressing amendment); 28 U.S.C. § 1915A (requiring initial review

in prisoner civil cases). Therefore, this claim is not properly before the Court and it will

not be discussed further in this Order.

and the time to do so has expired. 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

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 175,

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 Cnty., 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, 557 U.S. 557,

586 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587

(1986)).

III. FACTUAL BACKGROUND

The parties’ forecasts of evidence show the following, which is

undisputed except as otherwise noted.

A. Use of Force Incidents

On the morning of April 20, 2016, Cardella entered the E Block of the

Jail where the Plaintiff was housed in order to escort the inmates outside for

exercise. [Doc. 39-1: Cardella Aff. at ¶ 6]. Cardella stood in the restroom

doorway to prevent the inmates from going into the restroom and flushing

any contraband they may have hidden in the cell block. [Id. at ¶ 8]. The

Plaintiff began walking toward Cardella, and Cardella told him that he would

not be able to use the restroom before he went outside. [Id. at ¶ 10]. The

Plaintiff continued stepping toward Cardella and said, “I am going to use the

damn restroom.”7 [Id. at ¶ 11]. When the Plaintiff continued to advance on

Cardella, she “stuck [her] left hand out in front of [her], palm out, in a

‘stopping’ motion. At the same time, [she] used [her] right hand to pull [her]

OC (Chemical) Spray container out of its holster.” [Id. at ¶ 12]. The Plaintiff

is larger than Cardella. [Id. at ¶ 13]. Cardella was afraid of the Plaintiff

because he stepped towards her in defiance of her instructions and because

7 In his Verified Complaint, the Plaintiff states that he told Cardella that he really needed

to use the restroom and that he was not disrespectful. [Doc. 1: Complaint at 7].

she knew he was being held on a charge of homicide. [Id.]. The Plaintiff

approached so close to Cardella that, with her left hand extended, Cardella

could nearly touch Plaintiff’s shoulder. [Id. at ¶ 14]. Cardella instructed

Plaintiff to “take a step back or I am going to spray you” with OC spray. [Id.

at ¶ 15; Doc. 1: Complaint at 7]. The Plaintiff stopped and took one step

backwards. [Doc. 39-1: Cardella Aff. at ¶ 16; Doc. 1: Complaint at 7].

Cardella re-holstered her OC spray and instructed the Plaintiff to go out to

the recreation yard. [Doc. 39-1: Cardella Affid. at ¶ 17]. The Plaintiff “defied

[her] orders stating ‘I am not going to the yard. I’m not going.’”8 [Id. at ¶ 18].

Cardella instructed the Plaintiff to turn around and place his hands

behind his back. [Id. at ¶ 19]. The Plaintiff complied and Cardella

approached to handcuff him. [Id. at ¶ 20]. When Cardella took hold of the

Plaintiff’s right arm to apply the cuffs, “he attempted to pull away.”9 [Id. at

¶21]. Cardella immediately grabbed the Plaintiff’s right wrist and cuffed it.10

[Id. at ¶ 22]. She then completed securing the handcuffs on the Plaintiff. [Id.

at ¶ 23]. The Plaintiff asked Cardella to loosen the cuffs because they were

8 The Plaintiff states that the inmates were previously told that they could sit in a holding

cell if they did not want to go outside. [Doc. 1: Complaint at 7].

9 The Plaintiff asserts that he complied with Cardella with regards to handcuffing. [Doc.

1: Complaint at 8].

10 The Plaintiff asserts that Cardella cuffed him “forcefully.” [Doc. 1: Complaint at 8].

“pinching [his] skin.” [Doc. 1: Complaint at 8]. Cardella agreed to loosen the

cuffs but failed to do so. [Id.]. The Plaintiff then asked to see a sergeant.

[Id.].

The Plaintiff was placed in Holding Cell 1. [Doc. 39-1: Cardella Aff. at

¶¶ 24-25]. Escorting an inmate from the blocks to a holding cell is standard

procedure when an inmate has disobeyed commands and acted in open

defiance in any way. [Id. at ¶ 26]. This provides the inmate a place to “cool

down” and allows a supervisor to speak to the inmate. [Id.]. The Plaintiff

again asked to see a sergeant. [Doc. 1: Complaint at 8]. Cardella told the

Plaintiff he would see a sergeant as soon as she closed the cell door. [Id.].

Cardella and Green placed Plaintiff in the holding cell in handcuffs and

secured the door. [Doc. 39-1: Cardella Aff. at ¶ 27].

Cardella and Green returned to the holding cell about 10 minutes later.

[Doc. 1: Complaint at 8]. Cardella attempted to remove the Plaintiff’s cuffs

through the cell’s trap but was unsuccessful. [Doc. 39-1: Cardella Aff. at ¶

30; Doc. 1: Complaint at 8]. Green and Cardella entered the holding cell to

uncuff the Plaintiff. [Doc. 39-1: Cardella Aff. at ¶ 31]. The Plaintiff was

directed to get down on one knee and he complied. [Id. at ¶ 32]. The Plaintiff

was then directed to lie down on his stomach. [Id. at ¶ 33; Doc. 1: Complaint

at 8]. Rather than complying, the Plaintiff “began twisting toward Officer

Green and [Cardella]” who were standing behind him.11 [Doc. 39-1: Cardella

Aff. at ¶ 35]. Cardella placed the Plaintiff on his stomach from his kneeling

position.12 [Id. at ¶ 36]. Cardella removed the cuff from the Plaintiff’s left

hand, then she directed the Plaintiff to place his hand on his head for officer

safety.13 [Id. at ¶¶ 39-40]. Instead of placing the uncuffed left hand on his

head, the Plaintiff attempted to place his right hand, which was still cuffed,

on his head. [Id. at ¶ 41]. Cardella perceived the Plaintiff’s attempt to pull

his right hand away from Cardella after she uncuffed his left hand as “as an

attempt to gain control of a weapon (the open left handcuff).” [Id. at ¶ 44].

Cardella held on tightly to the Plaintiff and did not release her hold on the

open handcuff. [Id. at ¶¶ 42-43, 45]. Cardella then finished uncuffing the

Plaintiff and secured the cell. [Id. at ¶ 46]. Cardella walked out of the cell,

11 The Plaintiff had two back surgeries before he was incarcerated and had a 12%

disability rating for his back on the date he was taken into custody. [Doc. 1: Complaint at

3, 12]. The Plaintiff states that he was unable to lie down as instructed because it caused

his back too much pain, and that he told Cardella that he is 25 to 30% disabled. [Id. at

9]. He asserts in his verified summary judgment response that, while he was on his

knees, he was “no threat to the officers or [himself].” [Doc. 36: Plaintiff’s MSJ 1 at ¶ 16].

12 The Plaintiff states that Cardella “grabbed [his] wrist and shoulder and started forcing

[him] down” and that this was “extremely painful and [Plaintiff] cried out.” [Doc. 1:

Complaint at 9]. The Plaintiff alleges that he was then “slammed to the floor and both

Officer Cardell and Green had [their] knees in [Plaintiff’s] back.” [Doc. 1: Complaint at 9].

13 The Plaintiff asserts that he was told to put one hand on his head and one hand behind

his back while kneeling and that he was unable to lie down from that position. [Doc. 1:

Complaint at 8-9].

“smirking like the situation was funny.” [Doc. 1: Complaint at 9]. The Plaintiff

again asked for a sergeant and Cardella said he would see one. [Id.].

The Defendants have submitted a video file containing the footage

from E Block at the time of the encounter between the Plaintiff and Cardella

at the bathroom entrance.14 It shows the following events:

00:16 Cardella enters E Block.

00:31 Cardella positions herself in the bathroom entrance.

01:20 An inmate approaches Cardella and speaks to her.

01:23 Plaintiff approaches, quickly steps in front of the inmate

speaking to Cardella, and keeps approaching as Cardella

steps away from him.

01:40 Plaintiff steps back from Cardella.

01:44 Plaintiff turns away from Cardella.

01:48 Plaintiff places his hands behind his back.

01:52 Cardella begins handcuffing the Plaintiff.

01:59 Plaintiff looks over his shoulder at Cardella.

02:06 Plaintiff steps back towards Cardella and dips slightly.

02:10 Plaintiff kneels.

14 Holding Cell 1 did not have a video camera inside of it on April 20, 2016. [Doc. 39-5:

Medlin Aff. at ¶ 19].

02:38 Cardella helps Plaintiff stand and escorts him away.

[Doc. 42: Cell Block E Video].

B. Medical Care

Sergeant Christopher Medlin15 went to Holding Cell 1 to speak with the

Plaintiff at approximately 8:45 a.m. on April 20, 2016. [Doc. 39-5: Medlin Aff.

at ¶ 4]. Medlin took pictures of the Plaintiff’s wrists at that time to document

any injuries he may have sustained.16 [Id. at ¶ 6]. Medlin observed no cuts

or other injuries on the Plaintiff aside from a “minor abrasion on his right

wrist.” [Id. at ¶ 8]. Medlin offered the Plaintiff the opportunity to be seen by

medical for the injuries on his wrist pursuant to Jail policy, but the Plaintiff

refused medical care. [Id. at ¶ 11; Doc. 39-1: Cardella Aff. Ex at 13, 15; Doc.

51: Plaintiff’s MSJ Response at 4].

The Plaintiff submitted a medical inquiry the next day, April 21, 2016,

stating he “was injured by an officer yesterday and [is] having a lot of pain

with [his] back.” [Doc. 50: Inmate Medical Files at 28]. Sergeant Medlin took

the Plaintiff to medical sick call that same day. [Doc. 39-5: Medlin Affid. at

¶ 20]. At the sick call appointment that day the Plaintiff “point[ed] to the flank

15 Sergeant Medlin is not a Defendant in this case.

16 The Plaintiff asserts that several photographs were also taken of his back on April 20,

2016 [Doc. 51: Plaintiff’s MSJ Response at 9], but that only one of those photographs

was produced in discovery. [See Doc. 51-1: Plaintiff’s MSJ Response Ex at 24].

area bilaterally,” but the provider noted no bruising, edema, or redness to the

back.17 [Id. at 108]. The Plaintiff received a seven-day course of ibuprofen

for his reported pain. [Id. at 28, 101, 108].

The Plaintiff submitted a medical inquiry on April 23, 2016, stating that

the medicine was not helping his back. [Doc. 50: Inmate Medical Files at

27]. He was instructed to keep taking the ibuprofen “to get it in [his] system

on a consistent basis,” then submit a sick call request if needed. [Id. at 27].

The Plaintiff submitted another medical inquiry on April 28, 2016, after

completing the course of ibuprofen. [Doc. 50: Inmate Medical Files at 26].

He was seen on sick call that same day and was given a 14-day course of

naproxen. [Id. at 101]. The Plaintiff submitted a medical inquiry on May 2,

2016 for continued pain. [Id. at 25]. The Plaintiff was told to continue taking

the naproxen until he could be seen by a provider on May 5, 2016. [Id. at

108]. At his May 5 appointment, the Plaintiff reported that pain radiated to

his right side; the provider observed mild tenderness. [Id.].

The Plaintiff filed a medical grievance for back pain on May 19,

complaining that his back still hurt and that his pain medication would end

17 The Plaintiff asserts that the April 20, 2016 photograph of his back shows redness and

“the start of bruising” from the officers’ knees. [Doc. 51: Plaintiff’s MSJ Response at 9;

Doc. 51-1: Plaintiff’s MSJ Response Ex at 24]. The Plaintiff further asserts that additional

pictures were taken at medical on April 21, 2016 which were not produced in discovery.

[Doc. 36: Plaintiff’s MSJ 1 at ¶ 23; Doc. 36-1: Plaintiff’s MSJ 1 Ex at 27].

the next day. [Doc. 50: Inmate Medical Files at 22]. That same day, doctor

renewed the naproxen and ordered x-rays of the Plaintiff’s spine. [Id. at 101].

On that day, medical personnel asked the Plaintiff about his back pain, but

he refused to answer and said “just give me my meds”; later, he was

observed running up and down the stairs with a normal gait. [Id. at 107].

The next day, an x-ray technician attempted to x-ray the Plaintiff’s back, but

the Plaintiff became irritated with the x-ray technician, got off the table, and

left. [Doc. 37-1: Plaintiff’s MSJ 2 Ex at 12; Doc. 50: Inmate Medical Files at

107].

On June 5, 2016, a nurse observed the Plaintiff “running up steps to

visitation,” bending over without difficulty, and walking without limping. [Doc.

50: Inmate Medical Files at 106]. The Plaintiff filed a medical inquiry that day

requesting a follow-up appointment for his back and he was seen on sick call

that same day. [Id.]. The Plaintiff was told that he needed to cooperate with

the x-ray technician so that x-rays could be taken and the Plaintiff agreed.

[Id.]. The Plaintiff was brought to medical for x-rays the next day, June 6,

2016. [Id.]. The Plaintiff jumped up onto the exam table without difficulty

and without using the step, lay flat on the x-ray board, sat up without difficulty

after the x-ray, jumped off the exam table after the x-rays were taken, and

showed no signs of distress. [Id.].

On June 8, 2016, the Plaintiff was informed that the x-rays showed “no

acute changes to his x-ray;” that the hardware that was placed in a prior

surgery was in place; and that “[degenerative disc disease] is present as

seen in 2009 x-ray.” [Doc. 50: Inmate Medical Files at 100]. The Plaintiff

was given a copy of back exercises and was offered instructions if needed.

[Id. at 106]. On June 12, 2016, the Plaintiff was asked whether the exercises

were helping but he did not respond. [Id.].

The Plaintiff filed a medical inquiry about back pain on June 27, and

he was seen on sick call the same day to discuss and renew his medication.

[Doc. 50: Inmate Medical Files at 19, 105]. The medication was renewed

again on July 2, 2016. [Id. at 100].

C. Safekeeping Transfers

North Carolina law recognizes medical safekeeping orders. [Doc. 44-

1: Dennis Aff. at ¶ 8]. Under medical safekeeping, when the Inmate Health

staff decides that local facilities are inadequate to meet an inmate’s medical

needs, Jail staff contact the Department of Adult Correction (DAC) to ensure

a bed is available, present the information to the Court, obtain a safekeeping

order, and transport the inmate to DAC. [Id. at ¶ 10]. When another party

obtains a safekeeping order, Jail staff attempt to carry it out as quickly as

possible but, because the advance work such as ensuring the availability of

a bed has not been worked out ahead of time, safekeeping orders not

obtained by Jail staff may result in a delay. [Id. at ¶ 11].

On July 25, 2016, the Plaintiff’s criminal lawyer filed a motion to move

the Plaintiff to safekeeping for medical attention (“First Safekeeping Motion”)

in Union County Superior Court where the Plaintiff’s homicide case was

pending. [Doc. 1: Complaint Ex at 12]. That court issued an Order to move

the Plaintiff to safekeeping for medical treatment on August 4, 2016 (“First

Safekeeping Order”). [Doc. 37-1: Plaintiff’s MSJ 2 Ex at 53]. The Jail

received the Safekeeping Order on August 5, 2016 and, three days later, the

Plaintiff was transferred to Central Prison where he received treatment,

including physical therapy and additional testing. [Doc. 50: Inmate Medical

File at 104; Doc. 37: Plaintiff’s MSJ 2 at ¶ 20].

The Plaintiff was transferred back to the Jail on December 2, 2016 for

a court date.18 [Doc. 37: Plaintiff’s MSJ 2 at ¶ 7]. The Jail has nothing to do

with the setting of inmates’ court dates. [Doc. 44-1: Dennis Aff. at ¶ 14].

The Sheriff is required by law to have an inmate available to be produced in

court on his court date upon the request of the District Attorney or the

inmate’s attorney. [Id.]. At that time, DAC “refused to allow inmates to be

18 No court appearance actually occurred. [Doc. 1: Complaint at 1].

returned to their custody when they were brought back from safekeeping for

a court date.” [Id. at ¶ 12]. Instead, DAC “required a new safekeeping order

every single time an inmate was returned to the county jail.”19 [Id. at ¶ 13].

The Plaintiff remained at the Jail for the next several months without the

treatment that he was receiving and that had been planned at Central Prison.

[Doc. 1: Complaint at 10].

The Plaintiff’s criminal lawyer filed a second safekeeping motion on

April 24, 2017 (“Second Safekeeping Motion”), which the North Carolina

criminal court granted on May 8, 2017 (“Second Safekeeping Order”). [Doc.

1: Complaint Ex at 16; Doc. 37-1: Plaintiff’s MSJ 2 Ex at 21]. On June 2,

2017, the Plaintiff submitted a Release Date Inquiry to the Jail, asking why

he had not been returned to safekeeping. [Doc. 1: Complaint at 19]. The

Jail responded that it had not received any paperwork about the Plaintiff

returning to Central Prison. [Id.].

The Jail received the Second Safekeeping Order on June 13, 2017,

and the Plaintiff was transported back to Central Prison that same day. [Doc.

44-1: Dennis Aff. at ¶¶ 21-22; Doc. 50: Medical Records at 97]. After

returning to Central Prison, the Plaintiff received additional physical therapy

19 This provision of North Carolina’s safekeeping law was subsequently changed. [Doc.

44-1: Dennis Aff. at ¶ 14].

and testing, which showed bulging discs and pinched nerves for which he

now receives daily medication and steroid injections every four to five

months. [Doc. 51: Plaintiff’s MSJ Response at 5].

IV. DISCUSSION

A. Excessive Force

The Plaintiff alleges that Defendants Cardella and Green used

excessive force against him on April 20, 2016, when Cardella handcuffed

him forcefully in E Block and when both Cardella and Green slammed him to

the ground and placed their knees in his back in the holding cell.

Pretrial detainees are protected from the use of excessive force by the

Fourteenth Amendment. See Graham v. Conner, 490 U.S. 386, 395 n.10

(1989) (“protects a pretrial detainee from the use of excessive force that

amounts to punishment”). 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,

396-97 (2015). The standard for assessing a pretrial detainee’s excessive

force claim is “solely an objective one.” Id. at 397. 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 Plaintiff alleges that Defendant Cardella handcuffed him forcefully

so that the cuffs were pinching his skin; that she failed to loosen the cuffs

when he complained of pain; and that the cuffs drew blood and ripped his

skin.

The Plaintiff’s forecast of evidence is insufficient to show a genuine

issue of material fact as to the reasonableness of Cardella’s actions in cuffing

the Plaintiff. The uncontroverted forecast of evidence, including video

footage of the events in E Block, demonstrates that the Plaintiff approached

Cardella aggressively. Cardella testified that she was afraid of the Plaintiff

because he is larger than she and was jailed on a homicide charge. The

Plaintiff admits that he argued with Cardella about going into the bathroom

instead of going outside for exercise. Cardella attempted to temper the

amount of force used by unholstering her OC spray and verbally warning the

Plaintiff, then putting the spray away when the Plaintiff complied with her

order to back up. The video footage further reveals that the Plaintiff moved

while Cardella was attempting to handcuff him in such a way that a

reasonable officer would have believed that the Plaintiff was offering some

physical resistance. Further, the Plaintiff suffered de minimis injury from the

handcuffing. The Plaintiff’s contentions that the handcuffs were so tight that

they drew blood and ripped his skin are conclusively refuted by photographs

taken a short time after the incident, which reveal only an abrasion and mild

redness and no blood whatsoever. See Eastern Shore Mkt. Inc., 213 F.3d

at 180 (courts “need not accept as true unwarranted inferences,

unreasonable conclusions, or arguments.”). Therefore, this contention is

insufficient to raise a genuine issue of fact. Further, the handcuffs remained

on him for only about 10 minutes. [See Doc. 51: Plaintiff’s MSJ Response

at 1; Doc. 1: Complaint at 8, 9; Doc. 39-5: Medlin Affid. at ¶ 4]. The Plaintiff’s

aggressive actions, size, and opposition to orders; the threat that Cardella

reasonably perceived; and the Plaintiff’s lack of injury (besides a minor

scrape on his wrist) demonstrate that Defendant Cardella’s actions were

objectively reasonable.

The Plaintiff asserts that Defendants Green and Cardella used

excessive force inside the holding cell by slamming him to the holding cell

floor and placing their knees on his back while removing his handcuffs. It is

undisputed that: the Plaintiff had one hand uncuffed in the holding cell; the

Plaintiff did not lie down as the officers instructed; an open handcuff that is

attached to one wrist can be used as a weapon; and the officers forced the

Plaintiff to the ground and placed knees on his back. Although the Plaintiff

alleges that he experienced bruising and redness on his back, the medical

records indicate that no redness, bruising, or swelling was present the next

day. [Doc. 50: Inmate Medical Files at 108]. Further, an x-ray taken on June

6, 2016, showed no acute changes and no movement of the hardware in the

Plaintiff’s back from a prior surgery, and he was observed running, bending,

and jumping in the weeks and months following the incident. [Doc. 50:

Inmate Medical Files at 100, 107]. The Court concludes as a matter of law

that it was not objectively unreasonable for Defendants Cardella and Green

to force the Plaintiff to the floor and place knees on his back based on the

uncontroverted evidence of the Plaintiff’s failure to lie down on the floor when

ordered to do so, his possession of an open handcuff that could be used as

a weapon, his verbal and physical failure to obey officer orders a short time

earlier, the serious and violent nature of the charge on which he was being

held, and the lack of any observed injury.

Therefore, the Defendants will be granted summary judgment on this

claim and the Plaintiff’s Motion for Summary Judgment will be denied.

B. Deliberate Indifference to a Serious Medical Need

The Plaintiff alleges that he has received insufficient medical treatment

for back pain following the April 20, 2016 incident.

To state a claim for deliberate indifference to a serious medical need,

a plaintiff must show that he had serious medical needs and that the

defendant acted with deliberate indifference to those needs.20 Heyer v.

20 Because Plaintiff was a pretrial detainee at the relevant times, his deliberate

indifference claim is properly brought under the Fourteenth Amendment rather than the

Eighth Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983); see

also Martin v. Gentile, 849 F.2d 863 (4th Cir. 1988) (applying the Fourteenth Amendment

to an arrestee’s deliberate indifference claim). However, the Fourth Circuit has long

applied the Eighth Amendment deliberate indifference standard to pretrial detainees’

deliberate indifference claims. See, e.g., Young v. City of Mount Ranier, 238 F.3d 567,

575 (4th Cir. 2001); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999); Belcher v. Oliver,

898 F.2d 32, 34 (4th Cir. 1990); Martin, 849 F.3d at 863. In Kingsley v. Hendrickson, 576

U.S. 389 (2015), the Supreme Court held that the test for excessive force claims brought

by pretrial detainees under the Fourteenth Amendment differs from the test for excessive

force claims brought by convicted prisoners under the Eighth Amendment. Some circuits

have held, in light of Kingsley, that an objective reasonableness standard should apply in

custodial contexts besides excessive force, including medical claims. See, e.g.,

Hardeman v. Curran, 933 F.3d 816 (7th Cir. 2019) (extending the objective standard to

conditions of confinement cases); Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)

(extending objective standard to conditions of confinement cases); Castro v. City of Los

Angeles, 833 F.3d 1060, 1069-70 (9th Cir. 2016 (en banc) (extending the objective

standard to failure to protect claims). The Fourth Circuit has not yet addressed this

question. See, e.g., Duff v. Potter, 665 F. App’x 242, 244-45 (4th Cir. 2016) (applying the

Kingsley standard to a detainee’s excessive force claim but declining to disturb the district

court’s ruling on plaintiff’s claim of deliberate indifference to a serious medical need for

procedural reasons). However, the case law applying the deliberate indifference standard

to such claims has not been overruled and the Fourth Circuit has not expressed any

intention to do so. See, e.g., Doe 4 by and through Lopez v. Shenandoah Valley Juvenile

Ctr. Comm’n, 985 F.3d 327, 340 (4th Cir. 2021) (noting, in a different context, that the

deliberate indifference standard applies to pretrial detainees’ claims on inadequate

medical care); Shover v. Chestnut, 798 F. App’x 760, 761–62 (4th Cir. 2020) (applying the

deliberate indifference standard to a pretrial detainee’s claim regarding a serious medical

United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (citing Iko

v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). A “serious medical need” is

“one that has been diagnosed by a physician as mandating treatment or one

that is so obvious that even a lay person would easily recognize the necessity

for a doctor's attention.” Iko, 535 F.3d at 241 (internal quotation marks

omitted). To constitute deliberate indifference to a serious medical need,

“the treatment [a prisoner receives] must be so grossly incompetent,

inadequate, or excessive to shock the conscience or to be intolerable to

fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990),

overruled on other grounds by Farmer v. Brennan, 511 U.S. 825, 825 (1994).

The Plaintiff asserts his medical deliberate indifference claim against

Sheriff Cathey only. There is no allegation that Defendant Cathey was

personally involved in the Plaintiff’s medical care at the Jail. As such, the

Defendants are entitled to summary judgment to the extent that the Plaintiff

asserts any deliberate indifference claim against Defendant Cathey in his

individual capacity. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (for

personal liability, “it is enough to show that the official, acting under color of

state law, caused the deprivation of a federal right.”). Further, the Plaintiff

need without discussing Kingsley); Krell v. Braightmeyer, 2020 WL 5640407 (4th Cir. Sept.

22, 2020) (same).

fails to present any forecast of evidence showing that Defendant Cathey

knew of and tacitly approved or disregarded his subordinates’ conduct that

posed a pervasive or unreasonable risk of constitutional injury. As such, the

Plaintiff’s claim cannot survive summary judgment to the extent that any

claim is asserted against Defendant Cathey on the basis of supervisory

liability.21 See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).

The Plaintiff’s claim against Defendant Cathey in his official capacity is

“treated as a suit against the entity,” which must then be a “‘moving force’

behind the deprivation.” King v. Rubenstein, 825 F.3d 206, 223 (4th Cir.

2016) (quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981)). Thus,

the governmental entity’s “‘policy or custom’ must have played a part in the

violation of federal law.” Graham, 473 U.S. at 166 (quoting Monell v. Dep’t

of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)).

The Defendants have presented a forecast of evidence, which the

Plaintiff has not rebutted, that Defendant Cathey promulgated a Medical Plan

under which the Union County Health Department (“UCHD”) has the

responsibility to provide medical care to inmates at the Jail. [Doc. 39-11:

21 The Plaintiff has filed employee records to support his argument that Defendant

Cardella “has a history of not following jail policies….” [Doc. 36: Plaintiff’s 1 at ¶ 7]; [see

Doc. 36: Plaintiff’s MSJ 1 Ex at 8, 10, 12, 22, 23] (Employee Warning Notices). However,

none of these warnings relate to medical care, and the Plaintiff has failed to forecast any

evidence that Defendant Cathey tacitly approved or knew of and deliberately disregarded

any conduct that posed a pervasive or unreasonable risk of constitutional injury.

Medical Plan at 7]. The Medical Plan requires the provision of adequate

medical care to inmates by qualified health professionals. [See id.].

Defendant Cathey is not an employee of UCHD and has no authority to make

inmate medical decisions. [See id.]. Further, UCHD healthcare personnel

are not employees of the Union County Sheriff’s Office. See Young v. Bailey,

368 N.C. 665, 669, 781 S.E.2d 277, 280 (2016) (“a sheriff’s office is not a

program or department of a county … [and an] employee of a sheriff’s office

is not a county employee.”). The Plaintiff has failed to forecast any evidence

that Defendant Cathey’s Medical Plan is constitutionally insufficient or

resulted in the violation the Plaintiff’s constitutional rights, or that Defendant

Cathey had any role in the UCHD employees’ provision of medical services

at the Jail.

Moreover, the Plaintiff has failed to forecast evidence from which a

reasonable fact finder could determine that any deliberate indifference to a

medical need occurred. The evidence before the Court demonstrates that

the Plaintiff received timely and adequate medical care. It is undisputed that

the Plaintiff was offered medical treatment immediately after the April 20

incidents with Defendants Cardella and Green and that he received medical

attention when he requested it the following day. At that time the Plaintiff

was provided a seven-day course of ibuprofen for his complaints of pain even

though no bruising, redness, or swelling was observed. [Doc. 50: Inmate

Medical File at 108]. After the Plaintiff completed the ibuprofen and

continued to complain of pain, he was immediately provided naproxen for 14

days, which was repeatedly continued. When the Plaintiff continued to

complain of back pain, he was provided the opportunity for an x-ray on May

20, 2016. Due to the Plaintiff’s lack of cooperation, however, the x-ray was

not taken. The x-ray was promptly rescheduled after the Plaintiff agreed to

cooperate with the x-ray technician and the June 6, 2016 x-ray revealed no

acute changes. The Plaintiff continued to receive medication for his reported

pain, medical personnel followed up with him about his condition, he was

provided a copy of exercises for his back, and he was offered instruction on

those exercises. The Plaintiff was transferred to Central Prison for treatment

after his criminal attorney obtained a Safekeeping Order, and the Plaintiff

received additional care, including physical therapy and testing that was not

available at the Jail.

The Plaintiff was transported back to the Jail for a court date in

December 2016. Although he complains that he received no medical

treatment at the Jail at that time, the Plaintiff has failed to present any

forecast of evidence that he sought such care and was denied. When the

Jail received the Second Safekeeping Order, the Plaintiff was transferred

back to Central Prison that same day.

The Plaintiff has failed to present a forecast of evidence that any

Defendant knew of and deliberately disregarded a serious medical need.

The Plaintiff’s disagreement with the care that the Jail provided does not

demonstrate that deliberate indifference occurred. Scinto v. Stansberry, 841

F.3d 219, 225 (4th Cir. 2016) (“mere ‘[d]isagreements between an inmate and

a physician over the inmate’s proper medical care’ are not actionable absent

exceptional circumstances.”) (quoting Wright v. Collins, 766 F.2d 841, 840

(4th Cir. 1985)). Further, any negligence or malpractice by the Jail’s medical

personnel with regards to diagnosing and treating the Plaintiff’s back

condition does not rise to the level of a constitutional violation. Grayson v.

Peed, 195 F.3d 692, 695 (4th Cir. 1999) (“Deliberate indifference is a very

high standard—a showing of mere negligence will not meet it.”).

Therefore, the Defendants will be granted summary judgment on the

Plaintiff’s claim of deliberate indifference to a serious medical need and the

Plaintiff’s Motion for Summary Judgment will be denied.

C. Retaliation

The Plaintiff alleges that Defendant Cathey retaliated against him by

interfering with his medical care.

The First Amendment right to free speech “includes not only the

affirmative right to speak, but also the right to be free from retaliation by a

public official for exercising that right.” Suarez Corp. v. McGraw, 202 F.3d

676 (4th Cir. 2000). Prison officials may not retaliate against an inmate for

exercising a constitutional right. See Hudspeth v. Figgins, 584 F.2d 1345,

1347 (4th Cir.1978). In order to state a colorable retaliation claim under §

1983, a plaintiff must allege: “(1) [ ]he engaged in protected First Amendment

activity, (2) the defendant[ ] took some action that adversely affected [his]

First Amendment rights, and (3) there was a causal relationship between

[his] protected activity and the defendant[’s] conduct.” Martin v. Duffy, 858

F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of

George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)) (alteration in

original). A plaintiff suffers adverse action if the allegedly retaliatory conduct

“would likely deter a person of ordinary firmness from the exercise of First

Amendment rights.” Id. A plaintiff “must show that the defendant’s conduct

resulted in something more than a ‘de minimis inconvenience’ to her exercise

of First Amendment rights.” Constantine, 411 F.3d at 500 (quoting ACLU of

Md., Inc. v. Wicomico Cnty., Md., 999 F.2d 780, 786 n.6 (4th Cir. 1993)). This

objective inquiry examines the specific facts of each case, taking into

account the actors involved and their relationship. Balt. Sun Co. v. Erlich,

437 F.3d 410, 416 (4th Cir. 2006). The Plaintiff’s actual response to

retaliatory conduct “provides some evidence of the tendency of that conduct

to chill First Amendment activity.” Constantine, 411 F.3d at 500.

The Plaintiff appears to allege that Defendant Cathey deliberately

interfered with his medical care by failing to return him to Central Prison

following his December 2016 court date in retaliation for exercising his right

to a trial. [See Doc. 1: Complaint at 2, 10; Doc. 37: Plaintiff’s MSJ 2 at ¶¶

11, 20, 21 23. The Plaintiff has failed to present any forecast of evidence

that Defendant Cathey knew that the Plaintiff had been returned from

safekeeping for a court date or that the Plaintiff was insisting on a trial in his

criminal case.22 Further, the Defendants have come forward with an

unrebutted forecast of evidence that the Plaintiff was brought back from

safekeeping in December 2016 for a regularly scheduled court date. The

Sheriff was legally required to have the Plaintiff available for such a court

date if requested by the district attorney or his lawyer. [Doc. 44-1: Dennis

Aff. at ¶¶ 14-15]. The Defendants have also presented an unrebutted

forecast of evidence that the failure to return the Plaintiff to Central Prison

following his court date was due to Department of Adult Correction (DAC)

22 Although not in the record of evidence, the Defendants’ counsel asserts in his

memorandum to this Court that the Plaintiff ultimately entered a guilty plea. [See Doc.

39: Defendants’ MSJ Memorandum at 10 n. 2].

policy that “required a new safekeeping order every single time an inmate

was returned to the county jail.” The Plaintiff was promptly returned to

Central Prison within hours of the Sheriff receiving the Second Safekeeping

Order. [Doc. 44-1: Dennis Aff. at ¶ 13].

The Plaintiff has thus failed to forecast any evidence that his protected

conduct was a substantial motivating factor for his transfer to the Jail for a

court date, or for the Jail’s failure to promptly return him to Central Prison, or

that Defendant McCarthy was responsible for or even aware of the foregoing.

See Constantine, 411 F.3d at 501 (“In order to establish th[e required] causal

connection, a plaintiff in a retaliation case must show, at the very least, that

the defendant was aware of her engaging in protected activity.”); Cottom v.

Town of Seven Devils, 30 F. App’x 230, 234 (4th Cir. 2002) (granting

summary judgment on plaintiffs’ retaliation claim where plaintiffs failed to

demonstrate that any action was taken against them in response to their

complaints, and offered only speculation and hearsay in support of their

claim); Haendel v. Va. Dep’t of Corr., 2020 WL 7018564, at *9 n. 12 (W.D.

Va. Nov. 30, 2020) (dismissing inmate’s retaliation claim where the plaintiff

failed to make the requisite preliminary showing that his protected conduct

was a substantial motivating factor in the decision to charge him with

disciplinary violations).

The Defendants will therefore be granted summary judgment on this

claim and the Plaintiff’s Motion for Summary Judgment will be denied.

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 the Plaintiff has not presented a forecast of evidence

that the Defendants violated the Plaintiff’s constitutional rights with his

respect to his claims of excessive force, medical care, or retaliation, the

Defendants are entitled to qualified immunity on these claims. As such,

Defendants’ Motion for Summary Judgment based on qualified immunity will

be granted.

IV. CONCLUSION

For the reasons stated herein, the Court will deny the Plaintiff’s Motions

for Summary Judgment [Docs. 36, 37] and will grant the Defendants’ Motion

for Summary Judgment [Doc. 38].

ORDER

IT IS, THEREFORE, ORDERED that the Plaintiff’s Motions for

Summary Judgment [Doc. 36, 37] are DENIED; the Defendants’ Motion for

Summary Judgment [Doc. 38] is GRANTED; and this action is DISMISSED

WITH PREJUDICE.

IT IS FURTHER ORDERED that the following exhibits are SEALED

pursuant to the Protective Order entered in this case: Exhibits 2 through 5, 9

through 11, and 14 through 15 to Docket Entry 37; Exhibits 20 through 28

and 33 through 43 to Docket Entry 36; and Exhibits 3, 5 through 11, 21

through 22, and 24 through 26 to Docket Entry 51 and shall remain sealed

until further Order of this Court.

The Clerk is respectfully directed to terminate this action.

IT IS SO ORDERED.

Martiff Reidinger ey,

Chief United States District Judge ely

31