Crawford v. Burke County District Attorney's Office

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:19-cv-00307-MR

CHRISTOPHER GENE )

CRAWFORD, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

BRADLEY RICHARDS, et. al., )

)

Defendants. )

___________________________ )

THIS MATTER comes before the Court on Defendants’ Motion for

Summary Judgment [Doc. 36] and on Plaintiff’s “‘Motion on response to’

Defendants Material Facts” [Doc. 43].

I. PROCEDURAL BACKGROUND

On October 25, 2019, Plaintiff Christopher Gene Crawford (“Plaintiff”),

proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983 for the

violation of his civil rights during and after his trial at the Burke County

Courthouse (the “Courthouse”) in Morganton North Carolina. [Doc. 1]. He

named the Burke’s County Sheriff’s Office (“Sheriff’s Office”) and the Burke

County District Attorney’s Office (“DA’s Office”) as Defendants. With his

Complaint under § 1983, Plaintiff filed a separate complaint for negligence

against Wayne Clontz, his attorney; the Honorable Lisa Bell1; Michelle

Ledford, the Assistant District Attorney for Burke County; and the Sheriff’s

Office and DA’s Office. [Doc. 1-2 at 1-3]. For the purposes of initial review,

the Court considered these complaints collectively as one complaint, treating

Plaintiff’s negligence complaint as simply stating a cause of action for

negligence as if propounded in Plaintiff’s § 1983 Complaint. [See Doc. 13 at

3].

Plaintiff alleged that he was on trial for a Class H Felony and that Judge

Bell declared a mistrial and revoked Plaintiff’s bond. [Doc. 1 at 2]. Plaintiff

further alleged that the bailiffs in the courtroom then put him in handcuffs and

took him to the hallways behind the courtroom, where they threw him to the

ground, knocking out his tooth; kicked him, breaking two ribs; and broke his

tailbone. [Id.].

The Court dismissed Defendants Burke County District Attorney’s

Office, Judge Bell, and Michelle Ledford with prejudice and Defendants

Clontz and the Sheriff’s Office without prejudice for the reasons stated in the

Court’s Order. [Doc. 13 at 4-6]. The Court, however, allowed Plaintiff to

amend his complaint to identify the Sheriff’s Office employee(s) responsible

1 Plaintiff incorrectly identified Judge Bell as “Belle.” [See Doc. 1-2 at 2-3]. The Court will

hereinafter refer to Judge Bell by her correct name and will direct the Clerk to update the

docket in this matter accordingly.

for the alleged use of excessive force outside the courtroom. [Id.].

Plaintiff timely amended his complaint. [Doc. 15]. In his Amended

Complaint, Plaintiff identifies Defendants Bradley Richards and FNU

Huffman2 as the bailiffs who allegedly used excessive force on Plaintiff in the

Courthouse. [Doc. 15 at 5; Doc. 15-1 at 6]. Plaintiff also asserted a new

claim that, after he was beaten at the Courthouse, he was transported to the

Burke Catawba District Confinement Facility (BCDCF), where Richards and

Huffman continued the abuse and were joined by Defendants Josh Smith

and FNU Sickjack,3 whom Plaintiff identified as a Sergeant and Lieutenant

at BCDCF, respectively. [Doc. 15-1 at 6]. Plaintiff’s claims against

Defendants Richards, Huffman, Siciak, and Smith survived initial review

based on the use of excessive force4,5 [Doc. 17] and are the only claims

2 Defendant FNU Huffman has since been identified as Jonathan Huffman [see Doc. 38-

4], and the Court will direct the Clerk to update the docket in this matter to reflect this

Defendant’s true name.

3 Defendant “FNU Sickjack” has since been identified as Patricia Siciak [see Doc. 38-10],

and the Court will also direct the Clerk to update the docket in this matter to reflect this

Defendant’s true name.

4 Plaintiff named Defendants Richards, Huffman, and Siciak in their official capacities only.

[Doc. 15 at 2-3]. Plaintiff did not specify the capacity in which he purports to sue

Defendant Smith. [See Doc. 15-1 at 1]. The Court assumes, therefore, that Plaintiff

intended to sue Smith in his individual and official capacities.

5 Plaintiff also named Wayne Clontz, his attorney, and Bryan Jones as Defendants in the

Amended Complaint. [Doc. 15-1 at 1]. The Court dismissed these Defendants on initial

review of Plaintiff’s Amended Complaint for the reasons stated in that Order. [Doc. 17].

remaining for disposition here.

On December 14, 2020, Defendants filed a Motion for Summary

Judgment. [Doc. 36]. Defendants argue that summary judgment should be

granted because Plaintiff failed to exhaust administrative remedies, because

Plaintiff’s claims fail as a matter of law, because Defendants did not use

excessive force on Plaintiff, and because qualified immunity bars Plaintiff’s

claims against Defendants. [Id.].

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. 40]. 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))].

In response, Plaintiff filed an improper two-page letter directed to the

undersigned that is not in the form of an affidavit or signed under penalty of

perjury. [See Doc. 48]. The Fourth Circuit recently made clear that a district

court is to consider verified prisoner complaints as affidavits on summary

judgment “when the allegations contained therein are based on personal

knowledge.” Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021).

In support of their summary judgment motion, Defendants have

submitted a brief, numerous affidavits, various BCDCF records relating to

Plaintiff, incident reports, and a Statement of Undisputed Material Facts.

[Docs. 37, 38, 38-1 through 38-11, 39]. Plaintiff responded to Defendants’

motion [Docs. 43, 43-1] but submitted nothing in a form acceptable at

summary judgment.6 And neither of Plaintiff’s complaints were verified or

6 In his response, Plaintiff submitted certain affidavits and other evidence submitted by

Defendants, the Sheriff’s Office Use of Force Policy, and what appear to be excerpts from

Defendants’ Answer, along with his assessment of these materials. [Docs. 43, 43-1].

Plaintiff also restated some factual allegations against Defendants. [See Doc. 43-1 at 32-

34]. In his response, Plaintiff also moved to sue Defendants in their official and individual

capacities. [Id. at 14]. Although improperly brought, the Court will construe Plaintiff’s

otherwise submitted under penalty of perjury and, therefore, cannot be

considered for their evidentiary value here. See Goodman, 986 F.3d at 498-

99. Thus, in terms of evidentiary forecast, the Defendants’ is unrefuted.

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).

motion as one to amend his Complaint, which the Court will deny as untimely. [See Doc.

31].

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. 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, 127

S.Ct. 1769, 1776 (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.7

Scott, 550 U.S. at 380, 127 S.Ct. at 1776.

III. FACTUAL BACKGROUND

Defendants’ uncontroverted forecast of evidence shows the following.

A. The Courtroom and Hallway

On March 27, 2019, Defendant Bradley Richards served as a bailiff

7 As noted, Plaintiff has presented no evidence in a form acceptable at this stage of the

proceedings. Moreover, the story told by Plaintiff, in his complaints, is “blatantly

contradicted by the record” such that “no reasonable jury could believe it.” The Court,

therefore, would be unable to adopt Plaintiff’s version for purposes of this motion, in any

event. See Scott, 550 U.S. at 380, 127 at 1769.

during Plaintiff’s criminal trial in Courtroom #1 of the Burke County

Courthouse. Other bailiffs on duty included including Deputies Matthew

Randall, Shawn Annas, and Jeremy Penland. [Doc. 38-4 at ¶¶ 3, 6: Huffman

Dec.; Doc. 38-1 at ¶ 4: Annas Dec.; Doc. 38-5 at ¶ 3: Norman Dec.; Doc. 36-

6 at ¶ 5: Penland Dec.; Doc. 38-7 at ¶ 5: Randall Dec.]. Lieutenant Rodney

Norman, who testified during the trial, was also present in the Courtroom.

[Doc. 38-5 at ¶ 3: Norman Dec.]. Throughout the day, several Sheriff’s

Office deputies and officers observed Plaintiff fidgeting, shaking, acting

strangely, and appearing anxious, excited, jittery, and agitated. [Doc. 38-4

at ¶ 5; Doc. 38-5 at ¶ 4; Doc. 38-7 at ¶ 5; see Doc. 38-8 at ¶ 4]. Officers also

observed Plaintiff speaking loudly with his attorney, which was distracting for

jurors. [Doc. 38-5 at ¶ 4; Doc. 38-7 at ¶ 6].

Judge Bell presided over the trial. She instructed the Plaintiff to stop

being loud and verbal. [Doc. 38-7 at ¶ 6]. Plaintiff’s attorney also asked

Plaintiff to stop talking. [Id.]. Plaintiff continued to speak out loud and

interrupt witnesses. [Id. at ¶ 7]. Judge Bell warned Plaintiff that she would

declare a mistrial if he continued this behavior. [Id.]. Despite this warning,

Plaintiff continued until Judge Bell took a recess, declared a mistrial,

requested additional bailiffs, and placed Plaintiff in the custody of the

Sheriff’s Office. [Doc. 38-5 at ¶¶ 4-5; Doc. 38-7 at ¶¶ 7-8; Doc. 38-1 at ¶ 5;

Doc. 38-6 at ¶ 6]. Thereafter, Plaintiff became aggravated and erratic, and

began to cry and scream, “Josh Lives!” [Doc. 38-5 at ¶ 5; Doc. 38-4 at ¶ 7;

Doc. 38-7 at ¶ 9; Doc. 38-8 at ¶ 6; Doc. 38-1 at ¶ 6; Doc. 38-6 at ¶ 6].

Defendant Huffman escorted Plaintiff out of the Courtroom and into the

hallway with the assistance of Deputies Randall and Penland. [Doc. 38-6 at

¶ 7; Doc. 38-7 at ¶ 9]. Plaintiff continued to yell loudly enough such that

Lieutenant Norman, who was still inside the Courtroom, had to come out to

the hallway to assist the deputies who were escorting Plaintiff to the Bailiff’s

Office. [Doc. 38-5 at ¶ 6].

Deputy Annas remained behind in the Courtroom but could hear what

was being said in the hallway. [Doc. 38-1 at ¶ 8]. He heard a male voice

say, “Turn around and face the wall and put your hands behind your back.”

[Id.]. Plaintiff actively resisted and screamed at the deputies that they should

speak to Judge Bell about changing her decision. [Doc. 38-5 at ¶ 7; Doc.

38-4 at ¶ 8; Doc. 38-6 at ¶ 9]. Defendant Huffman handcuffed Plaintiff and

attempted to perform a pat down, but Plaintiff leaned against the wall, slid to

his knees, and claimed that he could not walk because he was “going to shit

[him]self.” [Doc. 38-4 at ¶¶ 9-11; Doc. 38-5 at ¶ 7; Doc. 38-7 at ¶ 9; Doc 38-

8 at ¶ 7; Doc. 38-6 at ¶ 9]. Plaintiff continued to resist and began screaming

phrases, such as “Josh Lives!,” “I am shitting myself,” “I have bad guts,” and

“I didn’t buy my kids Christmas presents.” [Doc. 38-8 at ¶ 8; Doc. 38-1 at ¶

9].

Defendant Huffman, along with Deputy Randall, picked up Plaintiff off

his knees and escorted him to the Bailiff’s Office while Deputy Richards

followed. [Doc. 38-4 at ¶ 12; Doc. 38-7 at ¶ 10]. Plaintiff resisted, went limp,

refused to walk freely, and attempted to slow them down. [Doc. 38-7 at ¶ 10;

Doc. 38-6 at ¶ 10]. Lieutenant Norman instructed the deputies to use their

verbal commands and to ensure that such commands were loud enough for

Plaintiff and others to hear. [Doc. 38-5 at ¶ 7].

At some point, Defendant Richards noticed that Plaintiff was about to

spit on Deputy Randall. [Doc. 38-8 at ¶10; Doc. 38-7 at ¶ 11]. Defendant

Richards turned Plaintiff’s head forward to prevent him from spitting on

Deputy Randall. [Doc. 38-8 at ¶ 11; Doc. 38-7 at ¶ 11]. Plaintiff continued

to resist transport, voluntarily went to the floor, and proceeded to kick and

scream that he was defecating himself and had gastrointestinal issues. [Doc.

38-7 at ¶ 12; Doc. 38-8 at ¶ 12]. Defendant Huffman lifted Plaintiff from the

floor and carried him to the Bailiff’s Office. [Doc. 38-7 at ¶ 14; Doc. 38-8 at

¶ 12].

Lieutenant Norman walked with the deputies and Plaintiff until they

reached the Bailiff’s Office and ensured the deputies were giving good

commands and following proper protocol. [Doc. 38-6 at ¶ 8; Doc. 38-7 at ¶

13]. At this point, the deputies placed Plaintiff in a chair, and Plaintiff stated,

“I can’t breathe.” [Doc. 38-7 at ¶ 13]. Lieutenant Norman observed that

Plaintiff was upset and hyperventilating and instructed the deputies to loosen

Plaintiff’s tie and/or unbutton his shirt. [Id.]. After this, Plaintiff said he was

fine. [Id.]. While Plaintiff was still sitting in the chair, Defendants Huffman

and Richards placed Plaintiff in restraints. [Doc. 38-4 at ¶ 14].

Lieutenant Norman then complimented the deputies for the way they

handled the situation and returned to the courtroom, as did Deputy Randall.

[Doc. 38-5 at ¶ 9; Doc. 38-4 at ¶ 13; Doc. 38-7 at ¶ 15]. Norman later called

Sheriff’s Office Captain Greg Huntley to inform him how well the deputies

handled the situation. [Doc. 38-5 at ¶ 9]. At no time did any deputy or other

individual use unnecessary or excessive force on Plaintiff. [Doc. 38-7 at ¶

15; Doc. 38-5 at ¶ 9; Doc. 38-6 at ¶ 11]. Any minimal force used during this

incident was merely a response to Plaintiff’s resistance to being escorted to

the Bailiff’s Office. [Doc. 38-7 at ¶ 16]. After placing Plaintiff in restraints,

Defendants Huffman and Richards escorted Plaintiff down the back stairwell

into the transport car. [Doc. 38-4 at ¶¶ 15-16].

B. Transport to BCDCF

On the way to BCDCF, Plaintiff sat in the back seat of the transport car

with his head hung down. [Doc. 38-4 at ¶ 17]. He appeared to be passed

out, asleep, or potentially under the influence of an intoxicating substance.

[Doc. 38-4 at ¶ 17; Doc. 38-8 at ¶¶ 13-14]. Defendant Richards had to wake

him up. [Doc. 38-8 at ¶ 13]. During transport, Defendant Richards called the

BCDCF to inform them how agitated Plaintiff had appeared. [Id. at ¶ 14].

Defendant Huffman kept a close eye on Plaintiff’s respirations during the

entire transport. [Id.]. When asked whether he was okay, Plaintiff would

mumble something in response. [Doc. 38-4 at ¶ 13].

C. Intake and Placement in Padded Cell at BCDCF

Upon arrival at the BCDCF, a detention officer assisted Plaintiff out of

the transport car and into the facility for intake procedures. [Doc. 38-4 at ¶

18]. At this point, the Sheriff’s Office no longer had custody of Plaintiff. [Id.].

Although Plaintiff was no longer in the custody of the Sheriff’s Office,

Defendants Huffman and Richards followed BCDCF officers as they placed

Plaintiff in a padded cell. [Id. at ¶ 19; Doc. 38-8 at ¶ 15]. Defendants Huffman

and Richards removed Plaintiff’s restraints, as well as his clothes, to ensure

he had not defecated himself. [Id.]. Defendant Siciak was working at

BCDCF on March 27, 2019 when Plaintiff was brought there. [Doc. 38-10 at

¶ 4: Siciak Dec.]. Defendant Siciak does not remember Plaintiff’s arrival that

day, but she is familiar with Plaintiff from previous occasions when he was

held at BCDCF. [Id.].

Standard procedure at BCDCF in March of 2019 called for inmates

who appeared inebriated, were violent or uncooperative, were suicidal as

determined by medical staff, or who otherwise needed observation to be

housed in padded cells. [See Doc. 38-10 at ¶ 7]. It was also standard

procedure, when placing inmates in padded cells, to remove the inmate’s

clothing and place them in a green safety smock commonly referred to as a

“turtle suit.” [Id. at ¶ 8; see Doc. 38-11 at ¶ 10: Smith Dec.]. At BCDCF,

padded cell checks were to be done every 15 minutes. Plaintiff was checked

on every 15 minutes, as indicated on the Daily Report of Inmate. [Doc. 38-

10 at ¶ 11 & pp. 8-9].

D. No Evidence of Injury

Intake procedure at BCDCF included searching inmates before their

restraints were removed, looking them over for apparent injuries, asking

them personal and medical questions to assess whether additional medical

attention is needed, and reviewing the personal property form with them.

[Doc. 38-11 at ¶ 6]. Defendant Smith, a detention officer at BCDCF, was

working when Plaintiff arrived at BCDCF on March 27, 2019. Defendant

Smith was involved in Plaintiff’s intake. [Id. at ¶¶ 4-5]. Plaintiff’s intake forms

show that he had no visible injuries, no breathing difficulties, and that he did

not report any serious medical needs. [Doc. 38-11 at ¶ 6 & p. 8]. The intake

form also states that Plaintiff was not bleeding or complaining of pain. [Id. at

8].

When an incoming inmate needed medical attention on arrival, as

deemed necessary by medical staff, the inmate would be transported to the

hospital for evaluation. [Doc. 38-10 at ¶ 6; Doc. 38-11 at ¶ 9]. Had Plaintiff

needed medical attention at intake, Defendant Smith would have ensured

that Plaintiff was taken to a facility for treatment. [Doc. 38-11 at ¶ 12].

In a BCDCF “Intake/Sick-Call Record” dated March 28, 2019, a nurse

reported that “[s]taff states he was held in contempt of court yesterday; they

suspect illicit substance abuse.” [Doc. 38-10 at 6]. A medical examination

of Plaintiff was performed, which was normal, and “NO injury [was] reported.”

[Id.]. Had Plaintiff reported any injuries or the need for medical attention, or

had BCDCF medical staff observed any injuries, he would have been further

evaluated and treated as appropriate. [Id. at ¶ 13].

E. Grievance Procedure and Exhaustion

In March 2019 and otherwise, BCDCF had an internal grievance

process available to all inmates. [Doc. 38-10 at ¶ 14]. All inmates, including

Plaintiff, had the opportunity to file a grievance at any time about any subject.

Upon request, inmates were provided with grievance forms to use in

submitting grievances. The grievance forms were reviewed by a supervisor

and BCDCF would attempt to resolve the grievance. All inmates had multiple

opportunities to participate in the grievance process and would be afforded

the opportunity to speak with any officer of any rank if they desired to do so.

[Id.]. Plaintiff never filed a grievance at BCDCF. [Id.]. Had Plaintiff asked to

file a grievance, he would have been given unimpeded access to participate

in the grievance process. [Id.]. After BCDCF, Plaintiff was transferred to the

Caldwell County Jail. [Doc. 15 at 7]. Plaintiff also never filed any grievances

at Caldwell County Jail regarding the instant incident, BCDCF, any of the

Defendants here, or otherwise. [Doc. 38-9 at ¶¶ 7-8: Shook Dec.].

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

claims against Defendants Siciak and Smith related to the events allegedly

occurring at BCDCF should be dismissed pursuant to the Prison Litigation

Reform Act (“PLRA”). [Doc. 39 at 14-15 (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. Exhaustion is excused “if a prisoner, through no fault of his own,

was prevented from availing himself of it.” Moore, 517 F.3d at 725. Futility,

however, is no exception to the exhaustion requirement. Reynolds v. Doe,

431 Fed. App’x 221, 222 (4th Cir. 2011) (citing Booth v. Churner, 532 U.S.

731, 741 n. 6 (2001)). Nor is an inmate’s ignorance of the requirement.

Goodwin v. Beasley, 2011 WL 835937, *3 (M.D.N.C. Mar. 3, 2011) (“Courts

have squarely rejected prisoners’ attempts to bypass the exhaustion

requirements by merely arguing lack of knowledge about the grievance

process.”); Smith v. Boyd, 2008 WL 2763841, *1 (D.S.C. July 11, 2008)

(“This court cannot waive the exhaustion requirement, which was specifically

mandated by Congress, based on Plaintiff’s ignorance of the requirement or

any perceived futility or inadequacy with the administrative grievance

process.”).

Here, the uncontroverted forecast of evidence shows that Plaintiff did

not file a written grievance. He did not file any grievance at the BCDCF or

at Caldwell County Jail. Plaintiff alleged in his Complaint that he filed a

grievance at Caldwell County Jail [Doc. 15 at 7], but Plaintiff concedes that

it did not relate to his instant claims. Moreover, he has presented no forecast

of evidence of such a grievance, whether related or not. Specifically, Plaintiff

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

exhaust his administrative remedies before filing this lawsuit. Plaintiff did not

even address the issue of exhaustion in his summary judgment response.

Moreover, in his original Complaint, Plaintiff admitted that he had not

sought “relief from the appropriate administrative officials regarding the acts

complained of.” [Doc. 1 at 3]. Plaintiff filed an administrative remedies

statement shortly after his Complaint in which he tacitly acknowledged not

having exhausted his administrative remedies based on his belief that he did

not “have administrative remedies available at this time.” [Doc. 5]. In his

Amended Complaint, Plaintiff acknowledged not having filed a grievance “in

the jail, prison, or other correctional facility” where his claims arose but

claimed to have filed a grievance at Caldwell County Jail. [Doc. 15 at 7].

Plaintiff, however, admits that his claim in that grievance related not to the

instant matters but to “how [he] was being held without bond on a Class H

Felony and it being unconstitutional and how [he] was filing a Habeas

Corpus.” [Id.].

Plaintiff, therefore, has not presented a sufficient forecast of evidence

to survive the Defendants’ Motion for Summary Judgment as to Plaintiff’s

claims against Defendants Siciak and Smith, which allegedly occurred at the

BCDCF. 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, Defendants Smith and Siciak’s 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 addresses

the other grounds for summary judgment asserted by all Defendants,

including Smith and Siciak. 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. 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.

Claims by a § 1983 plaintiff against law enforcement in their official

capacities are claims against the entity of which an officer is an agent.

Kentucky v. Graham, 105 S.Ct. 3099 (1985) (citing Monell v. New York City

Dep’t of Soc. Servs., 436 658, 690, n. 55, 98 S.Ct.2018, 2035, n. 55 (1978)).

To succeed on the merits of such a case, the plaintiff must prove that an

unconstitutional policy, practice, or custom of the entity “played a part” in the

claimed constitutional violation. Id. (citations omitted).

Plaintiff has sued Defendants Richards, Huffman, and Siciak in their

official capacities only. [Doc. 15 at 2-3]. Plaintiff’s claims against these

Defendants, therefore, survive only if the forecast of evidence shows that

BCDCF and Sheriff’s Office policies, customs, or practices played a part in

any constitutional violations. Plaintiff, however, has presented no such

forecast of evidence. Plaintiff has alleged a use of excessive force, but he

has presented no evidence of such. Likewise, he has neither alleged nor

presented a forecast of evidence that any use of excessive force was the

result of any custom, policy, or practice. As such, there is no genuine issue

of material fact remaining for trial and the Court will grant these Defendants’

motion for summary judgment on this ground.

Moreover, even if Plaintiff had asserted individual capacity excessive

force claims against these Defendants, they would fail, as does his claim

against Defendant Smith. The uncontroverted evidence before the Court

demonstrates that the force used on Plaintiff was reasonable and well within

constitutional limits. At the Courthouse, Plaintiff actively resisted movement

to the Bailiff’s Office after Judge Bell declared a mistrial. Plaintiff repeatedly

and voluntarily fell to the floor, screamed nonsensically at the deputies, and

attempted to spit on Deputy Randall. Any minimal force that was used on

Plaintiff to lift him upright and to avert his head from spitting on Deputy

Randall was necessary and objectively reasonable under the circumstances

created by Plaintiff. Furthermore, the intake of Plaintiff at BCDCF was in

keeping with their appropriate standard procedures. There is no forecast of

any evidence of the use of force, let alone excessive force, at BCDCF by any

Defendant or otherwise. As such, there is no genuine issue of material fact

as to Plaintiff’s excessive force claim, and it will be also 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 presented a forecast of evidence that

Defendants violated a constitutional right, Defendant Smith is entitled to

qualified immunity on Plaintiff’s individual capacity claim against him. To the

extent Plaintiff intended to assert individual capacity claims against

Defendants Huffman, Richards, and Siciak, these Defendants are also

entitled to qualified immunity. As such, summary judgment for Defendants

would also be proper for Defendants on this ground.

V. CONCLUSION

For the reasons stated herein, the Court will grant Defendants’ motion

for summary judgment.

ORDER

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

Summary Judgment [Doc. 36] is GRANTED and this action is hereby

DISMISSED with prejudice.

IT IS FURTHER ORDERED that Plaintiffs “Motion in responses to’

Defendants Material Facts” [Doc. 43] is DENIED.

The Clerk is respectfully instructed to update the docket in this matter

to reflect Defendant FNU Huffman’s true full name as Jonathan Huffman;

Defendant FNU Siciak’s true full name as Patricia Siciack; and Defendant

Lisa Belle’s name as Lisa Bell.

The Clerk is instructed to terminate this action.

IT IS SO ORDERED.

Signed: June 7, 2021

Se ee

Chief United States District Judge AS

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