# Crawford v. Abdleghafar

> District Court, W.D. North Carolina · August 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10257300

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** August 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:19-cv-00074-MR

DEMIRUS JEROME CRAWFORD, )
)
Plaintiff, )
)
vs. ) ORDER
)
ISLAM ABDLEGHAFAR, )
)
Defendant. )
________________________________ )

THIS MATTER comes before the Court on the parties’ motions for
summary judgment. [Docs. 38, 41].
I. PROCEDURAL BACKGROUND
Pro se Plaintiff Demirus Jerome Crawford (“Plaintiff”) is a North
Carolina inmate currently incarcerated at Scotland Correctional Institution in
Laurinburg, North Carolina. He filed this action on June 10, 2019, pursuant
to 42 U.S.C. § 1983 against Defendants Islam Abdleghafar, identified as a
correctional officer at Alexander Correctional Institution (“Alexander”), and
the North Carolina Department of Public Safety (NCDPS). [Doc. 1]. Plaintiff
did not specifically identify the nature of his claim and, on initial review, the
Court identified it as an excessive force claim under the Eighth Amendment.
[Doc. 11 at 1]. Plaintiff also failed to specify whether he was suing Defendant
Abdleghafar in his individual or official capacity, or both. [See id. at 3-4].
Plaintiff’s claim against Defendant Abdleghafar survived initial review under

28 U.S.C. §§ 1915(e)(2) and 1915A.1 [Doc. 11]. The Court appointed the
North Carolina Prisoner Legal Services (NCPLS) to conduct discovery on
Plaintiff’s behalf. [Doc. 24].

On February 2, 2021, Defendant moved for summary judgment. [Doc.
38]. In support of this motion, Defendant submitted a memorandum and all
discovery responses he had propounded on Plaintiff, which included records
related to the use of force incident at issue, Defendant’s training transcript,

nearly 300 pages of Plaintiff’s medical record, various NCDPS Policies, and
disciplinary records of Defendant related to the incident. In his
memorandum, Defendant admits that he improperly administered pepper

spray into Plaintiff’s cell after Plaintiff made offensive remarks regarding
Defendant’s religion and family. [Doc. 38-3 at 3]. Defendant, however,
argues that Plaintiff’s medical record does not “reflect any injury that can be
tied directly to this incident,” and “any injuries sustained were de minimis and

Plaintiff cannot prove damages.” [Id. at 8, 9].

1 Defendant NCDPS was dismissed on initial review for the reasons stated in the Court’s
Order. [Doc. 11 at 3-4].
On February 10, 2021, 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]. In
response to Defendants’ motion, Plaintiff filed a cross-motion for summary

judgment. [Doc. 41]. In support of his motion, Plaintiff submitted a
memorandum and affidavit, which incorporated relevant photographs and
prison records and select discovery responses by Defendant.2 [Doc. 41-1].
Defendant did not respond to Plaintiff’s cross-motion.

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.

2 Neither party submitted video footage of the incident to the Court.
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. “When faced with cross-
motions for summary judgment, the court must review each motion
separately on its own merits ‘to determine whether either of the parties

deserves judgment as a matter of law.’” Rossignol v. Voorhaar, 316 F.3d
516, 523 (4th Cir. 2003) (quoting Philip Morris Inc. v. Harshbarger, 122 F.3d
58, 62 n. 4 (1st Cir. 1997) (citation omitted)). “When considering each
individual motion, the court must take care to ‘resolve all factual disputes and

any competing, rational inferences in the light most favorable’ to the party
opposing that motion.” Id. (quoting Wrightman v. Springfield Terminal Ry.
Co., 100 F.3d 228, 230 (1st Cir. 1996)).

“‘Where the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue for trial.’” Ricci
v. DeStefano, 129 S. Ct. 2658, 2677 (2009) (quoting Matsushita v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).

III. FACTUAL BACKGROUND
The relevant forecast of evidence before the Court is as follows:
Plaintiff is a prisoner of the State of North Carolina. On December 14,

2018, Plaintiff was housed at Alexander in the restrictive housing unit. [Doc.
38-2 at 3]. Defendant was a Correctional Officer at Alexander from March
2017 to October 2019, when he assumed the position of Correctional

Sergeant. [Id. at 2]. On December 14, 2018, Defendant was assigned to
the cell extraction team. [Id. at 3]. After assembling in the restrictive housing
unit, the team performed a cell extraction two cells away from Plaintiff.

Defendant contends that when he entered the wing, Plaintiff targeted him,
stating “Abdelghafar is with them too that mother fucker he is not a Muslim,”
and made threats to Defendant’s family. [Id. at 3]. Defendant contends that
after the cell extraction was complete, he returned to Plaintiff’s cell to talk to

him and that Plaintiff was sitting on his bed and said, “did you bring your
mama with you?” Defendant states that he then opened the trap door and
sprayed pepper in Plaintiff’s direction on the bed. [Id.]. Defendant contends,

however, that no pepper spray got on Plaintiff “because the distance from
the door and the bed was too far and offender Crawford held up the bed
cover.” [Id.]. Plaintiff, on the other hand, attests that he was lying in his bed
when Defendant returned to Plaintiff’s cell and that Plaintiff did not “engag[e]

in any verbal provocation with the defendant,” but rather Defendant
“maliciously and without warning” opened Plaintiff’s trap door and sprayed
pepper spray into Plaintiff’s cell. [Doc. 41-1 at 3]. Plaintiff attests that he

“would have been sprayed much worse if not for his quick thinking to grab
his bed cover to shield himself.” [Id.]. Plaintiff’s bed, pillow, walls, and
personal possessions were sprayed during the incident.3 [Doc. 41-1 at 4; 6-

7]. Plaintiff, however, does not forecast evidence that he was pepper
sprayed anywhere on his body. [See Doc. 41-1]. As noted, neither party
submitted video footage of the incident to the Court. The Incident Report,

prepared because of the unanticipated use of force by Defendant, detailed
the incident as follows:
On 12/14/18 at 1539 hours, Officer Abdelghafar
entered the NPOD-wing and opened the food port on
the cell door of D-007 that is assigned to [Plaintiff] at
1540 hours he administered a burst of O.C. Pepper
spray, at 1540 hours he opens the food port and
administers another burst of O.C Pepper spray. The
sergeant on duty arrives and orders Officer
Abdelghafar out of the wing. [Plaintiff] is removed
from his cell and taken to the lower shower area in
NPODD-wing and offered a decontamination
shower, he refused4 and was monitored by Officer
Martin, RN Propst reports a use of force assessment
was conducted.

[Doc. 38-2 at 30-31; Doc. 41-1 at 12 (errors uncorrected)]. NCDPS Policy,
Use of O.C. Pepper Spray, Section .0004(c)(4) and (6), provides that pepper

3 The parties also submitted photographs of Plaintiff’s hands after the pepper spray
incident. [Doc. 41-1 at 9; Doc. 38-2 at 18-19]. It is not clear from the pictures whether
there is pepper spray on Plaintiff’s hands and Plaintiff does not contend that there was.

4 Zane Martin, a correctional officer who monitored Plaintiff after the incident, reported that
Plaintiff refused a decontamination shower because there was “no spray on his face or
head.” [Doc. 38-2 at 37; see Doc. 38-2 at 2].
spray “may not be used maliciously or as punishment” and “will not be used
as the result of the use of offensive language alone.” [Doc. 38-2 at 417]. As

a result of the incident, Defendant was issued a written warning, denied a
Field Training Officer position, and suspended from the prison response
team for approximately one year. [Id. at 6].

Plaintiff forecasts no evidence of any personal injury from Defendant’s
conduct. Plaintiff comments only that Defendant’s summary judgment
materials are largely irrelevant save “only the first 15 pages [in] addition to a
few sick call request forms filled out by plaintiff complaining about having

problems with his vision … possibly from the result of being pepper sprayed
on 12/14/2018.” [Doc. 41-1 at 24, 28 (emphasis added)].
Defendant’s forecast of evidence shows that, approximately two

months after the incident, Plaintiff began submitting Sick Call Requests
related to problems with his eyesight. [Doc. 38-2 at 216-218]. Plaintiff
complained that his vision was blurry and that he was seeing “little light
spots,” which Plaintiff noted started after he was maced. [Id.]. On February

22, 2019, Plaintiff was seen for a sick call visit for these complaints. He was
given a vision screen and referred to an optometrist for impaired vision. [Id.
at 89-90]. On March 15, 2019, Plaintiff was transferred to Marion

Correctional Institution (“Marion”). [Id. at 90]. At Marion, Plaintiff continued
to complain of blurry vision and began complaining about “massive
headaches” and nosebleeds. [Id. at 198, 204]. Plaintiff was seen by a nurse

on May 16, 2019 and by an optometrist on May 30, 2019 at Marion for these
symptoms. [Id. at 76-77, 79]. The optometrist prescribed reading glasses
for Plaintiff and found, on examination, that Plaintiff had a vision impairment

from multiple head traumas that was uncorrectable. [Id. at 77]. Plaintiff
received his glasses on June 10, 2019. [Id. at 179].
In February and March 2020, Plaintiff again began to complain of
blurred vision, eye pain, and headaches, which Plaintiff complained were

exacerbated by bright lights and reading. [Id. at 239, 242, 247, 342, 343,
344, 346, 347, 251, 253]. Plaintiff was seen for these complaints several
times during February, March, and April 2020. [Id. at 237, 239, 242, 247,

251, 253]. Plaintiff was issued another pair of glasses in March 2020. [Id.
at 245]. In May 2020, Plaintiff began complaining of tooth pain and of
grinding his teeth. [Id. at 336, 338, 339]. Finally, in August 2020, Plaintiff
was seen by an optometrist at Central Prison for complaints of blurred vision.

He was diagnosed with hypermetropia (farsightedness) and given a new
prescription for glasses, which he received a couple of weeks later.5 [Id. at
116, 226].

IV. DISCUSSION
Defendant admits that he improperly sprayed pepper spray through the
trap door of Plaintiff’s cell and argues that because Plaintiff suffered no more

than de minimis injury as a result, he cannot sustain an Eighth Amendment
claim. [Doc. 38-3 at 8-10]. Notably, Defendant does not argue that the
Eleventh Amendment bars any official capacity claim Plaintiff may have
brought. [See Doc. 38-3]. The Court will, nonetheless, address this issue.

McRay v. Maryland Dep’t of Transp., 741 F.3d 480, 483 (4th Cir. 2014)
(“[B]ecause of its jurisdictional nature, a court ought to consider the issue of
Eleventh Amendment immunity at any time, even sua sponte.”) (citation

omitted).
A. Sovereign Immunity
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.;

5 When synthesizing Plaintiff’s collective medical record, the implication is that Plaintiff’s
uncorrectable vision impairment creates or is consistent with myopia, or nearsightedness,
while Plaintiff’s hypermetropia, or farsightedness, is correctable with reading glasses.
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, Defendant

is entitled to summary judgment on Plaintiff’s official capacity claim, to the
extent Plaintiff intended to assert one.
B. Excessive Force
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).
Regarding the objective component, Defendant argues that “absent
the most extraordinary circumstances force which inflicts no injury or de
minimis injury does not satisfy the objective prong of the inquiry.” [Doc. 38-

2 at 8 (citing Norman v. Taylor, 25 F.3d 1259, 1262-63 (4th Cir. 1994))]. This
is old, bad law. In Wilkins v. Gaddy, 559 U.S. 34, 130 S.Ct. 1175 (2010), the
Supreme Court abrogated Norman and reiterated its holding in Hudson v.

McMillan, 503 U.S. 1, 112 S.Ct. 995 (1992). In Hudson, the Supreme Court
held that “the use of excessive physical force against a prisoner may
constitute cruel and unusual punishment [even] when the inmate does not

suffer serious injury.” 503 U.S. at 4. Moreover, the Court “rejected the notion
that ‘significant injury’ is a threshold requirement for stating an excessive
force claim. The ‘core judicial inquiry,’ [the Court] held, was not whether a

certain quantum of injury was sustained, but rather ‘whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.’” Wilkins, 559 U.S. at 37 (quoting Hudson,
503 U.S. at 7). “‘When prison officials maliciously and sadistically use force

to cause harm,’ the Court recognized, ‘contemporary standards of decency
are always violated … whether or not significant injury is evident. Otherwise,
the Eighth Amendment would permit any physical punishment, no matter

how diabolic or inhuman, inflicting less than some arbitrary quantity of
injury.’” Id. (quoting Hudson, 503 U.S. at 9).
This is not to say that the “absence of serious injury”
is irrelevant to the Eighth Amendment inquiry. “[T]he
extent of injury suffered by an inmate is one factor
that may suggest ‘whether the use of force could
plausibly have been thought necessary’ in a
particular situation.” The extent of injury may also
provide some indication of the amount of force
applied. As we stated in Hudson, not “every
malevolent touch by a prison guard gives rise to a
federal cause of action.” “The Eighth Amendment’s
prohibition of ‘cruel and unusual’ punishments
necessarily excludes from constitutional recognition
de minimis uses of physical force, provided that the
use of force is not of a sort repugnant to the
conscience of mankind.” An inmate who complains
of a “push or shove” that causes no discernible injury
almost certainly fails to state a valid excessive force
claim.

Injury and force, however, are only imperfectly
correlated, and it is the latter that ultimately counts.

Id. at 37-38 (citations omitted).
Here, Defendant’s use of pepper spray had no purpose other than to
cause harm to Plaintiff. Plaintiff was in his cell, either sitting or lying on his
bed, and of absolutely no threat to Defendant or anyone else. Defendant’s
conduct, at best, was in retaliation for Plaintiff’s alleged slurs and threats
against Defendant’s family. See Dean v. Jones 984 F.3d 295, 302 (4th Cir.
2021) (Officers “cross the line into an impermissible motive when they inflict
pain not to protect safety or prison discipline but to punish or retaliate against
an inmate for his prior conduct.”) (citations omitted). The forecast of
evidence, therefore, easily satisfies the subjective inquiry.
The Court turns to the objective inquiry. Other than Plaintiff’s bare
statements of the timing of some of his symptoms relative to Defendant’s
conduct, the medical record supports no causal connection between them.
Rather, the medical record supports that Plaintiff has an uncorrectable vision

impairment due to a previous head injury, that Plaintiff needed and was
prescribed reading glasses, and that Plaintiff suffered from possible migraine
headaches. There is no forecast of evidence that Plaintiff was touched by

the pepper spray at all. In fact, Plaintiff has forecast no evidence of damages
other than his bedding and some of his personal property having been
covered in pepper spray. The forecast of evidence, therefore, is insufficient,

as a matter of law, to warrant summary judgment in Plaintiff’s favor on the
objective inquiry of Plaintiff’s Eighth Amendment claim.
Defendant’s motion for summary judgment on Plaintiff’s individual
capacity claim will, therefore, be denied and Plaintiff’s cross-motion for

summary judgment will also be denied.6 The jury must decide whether
Defendant’s use of force was constitutionally excessive and, if so, what
damages Plaintiff may be entitled to.

V. CONCLUSION
In sum, for the reasons stated herein, the Court grants summary

6 Defendant argues that he is entitled to qualified immunity. [Doc. 38-3 at 10-12].
Qualified immunity shields “government officials performing discretionary functions …
from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A prison official’s gratuitous or excessive
use of pepper spray against an inmate has long since been recognized as violative of
such inmate’s constitutional rights. See Iko v. Shreve, 535 F.3d 225 (4th Cir. 2008);
Williams v. Benjamin, 77 F.3d 756 (1996). Because the forecast of evidence here, taken
in the light most favorable to the Plaintiff, would tend to show that Defendant’s conduct
violated a clearly established constitutional right, Defendant is not entitled to summary
judgment on the issue of immunity.
judgment for Defendant on Plaintiffs official capacity claim, to the extent he
asserted one; denies summary judgment for Defendant on Plaintiffs
individual capacity claim; and denies Plaintiff's cross-motion for summary
judgment. The Court will enter an Order contemporaneously herewith
ordering the parties to notify the Court whether they consent to a judicial
settlement conference. Should this matter not be resolved through such
conference, the Court will set this matter for trial on the issue of damages as

soon as feasible.
ORDER
IT 1S, THEREFORE, ORDERED that Defendant’s Motion for Summary
Judgment [Doc. 38] is GRANTED IN PART as to Plaintiff's official capacity
claim and DENIED IN PART as to Plaintiff's individual capacity claim against
Defendant.
IT IS FURTHER ORDERED that Plaintiffs Cross-Motion for Summary
Judgment [Doc. 41] is DENIED.
IT IS SO ORDERED.

Signed: August 2, 2021

Martiff Reidinger ey
Chief United States District Judge Ale

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10257300. Public record. Not legal advice.