McClary v. Butler

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

5:19-cv-00016-MR

RONALD MCCLARY, )

)

Plaintiff, )

)

vs. ) ORDER

)

MICHAEL BUTLER, )

)

Defendant. )

________________________________ )

THIS MATTER comes before the Court on the following:

(1) Plaintiff’s Motion for Reconsideration [Doc. 69];

(2) Plaintiff’s Motion for Default Judgment [Doc. 71];

(3) Defendant’s Motion for Summary Judgment [Doc. 75]; and

(4) Plaintiff’s letters [Docs. 70, 87, 88].

I. PROCEDURAL BACKGROUND

Pro se Plaintiff Ronald McClary (“Plaintiff”) is a North Carolina inmate

currently incarcerated at Scotland Correctional Institution in Laurinburg,

North Carolina. Plaintiff filed this action on February 11, 2019, pursuant to

42 U.S.C. §1983, against Defendant Michael Butler, a correctional officer at

Alexander Correctional Institution (“Alexander”), in his official and individual

capacities. [Doc. 1 at 2]. Plaintiff claimed that Defendant Butler violated

his Eighth Amendment rights by sexually assaulting him. [Id. at 4-5]. Plaintiff

alleged that, on May 14, 2018 at approximately 7:30 a.m., Defendant Butler

sexually assaulted Plaintiff by grabbing and squeezing Plaintiff’s testicles.

[Id.]. Plaintiff alleged that the incident “is on video.” [Id. at 5]. Plaintiff alleged

that he suffered pain from the assault and that he was not allowed to get

medical treatment. [Id. at 5]. Plaintiff’s claim survived initial review under 28

U.S.C. §§ 1915(e)(2) and 1915A.1 [Doc. 25].

On November 2, 2020, the Court appointed the North Carolina

Prisoner Legal Services (“NCPLS”) to conduct discovery for Plaintiff. [Doc.

57 at 2]. The Court set the deadline to complete discovery as February 25,

2021. [Id. at 4]. NCPLS attorney Cory Tischbein filed a Notice of

Appearance for the limited purpose of assisting Plaintiff with conducting

discovery. [Doc. 58]. On February 10, 2021, 15 days before the expiration

of the discovery deadline, Attorney Tischbein filed a notice in this matter

advising the Court that he had assisted Plaintiff in conducting discovery and

had provided advice and assistance to Plaintiff. [Doc. 61]. Attorney

Tischbein also moved to withdraw as Plaintiff’s counsel that day, which the

1 Subsequently, Plaintiff filed an Amended Complaint and a Second Amended Complaint.

Ultimately, however, Plaintiff’s Second Amended Complaint was essentially identical to

Plaintiff’s original Complaint and this matter proceeded as initially ordered by the Court.

[Docs. 31, 37; see Docs. 1, 35, 34, 39].

Court allowed. [Docs. 62, 63].

Before the expiration of the discovery deadline, Plaintiff filed two

“Motion[s] for Leave Judicial Notice,” in which he asked the Court to take

judicial notice of the fact that Defendant produced in discovery a video

containing footage from May 18, 2018, when the incident at issue occurred

on May 14, 2018, and to order that Plaintiff be allowed to view this video.

[Docs. 64, 65]. The Court denied the motions for judicial notice, advising

Plaintiff that he may address the video in his summary judgment

submissions. [Doc. 68 at 2]. The Court, however, granted Plaintiff’s request

to view the video and ordered that provisions be made for Plaintiff to view

any videos produced by Defendant in discovery in this matter at his then

current place of incarceration. [Id. at 5-6].

On March 4, 2021, Plaintiff moved the Court to compel production of

certain documents “not offered during discovery.” [Doc. 66 at 1]. The Court

denied Plaintiff’s motion to compel because Plaintiff did not include copies of

the disputed discovery requests with his motion, because he failed to certify

that he had attempted in good faith to resolve the discovery dispute, and

because the deadline for discovery had expired. [Doc. 68 at 3-4]. Plaintiff

has moved the Court to reconsider its March 10, 2021 Order denying

Plaintiff’s motion to compel discovery. [Doc. 69]. Plaintiff has also moved

for default judgment against Defendant. [Doc. 71]. These motions are

pending before the Court.

On May 28, 2021, Defendant moved for summary judgment. [Doc. 75].

In support of this motion, Defendant submitted a memorandum; a Statement

of Material Facts; the Affidavits of Benjamin Carver and Defendant Butler;

the NCDPS Offender Sexual Abuse and Sexual Harassment Policy

(“NCDPS Sexual Abuse Policy”); Alexander’s Sexual Abuse Elimination

(PREA) Standard Operating Procedure (“PREA SOP”);2 an Incident Report

for an incident occurring on May 18, 2018; and video footage of Plaintiff’s

wing taken on May 18, 2018 at approximately 8:00 a.m.3 [Docs. 76, 76-1

through 76-7, 77].

On June 3, 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

2 PREA refers to the Prison Rape Elimination Act, 34 U.S.C. § 30301. It seeks to establish

“zero tolerance” for the incidence of prison rape. The purpose of this Act is to protect

inmates in correctional facilities from sexual abuse and sexual assault. Gadeson v.

Reynolds, No. 2:08-3702-CMC-RSC, 2009 WL 4572872, at *3 (D.S.C. Dec. 4, 2009).

The purpose of the PREA SOP “is to provide guidelines for the prevention, detection,

response, investigation, prosecution and tracking of offender on offender and staff on

offender sexual abuse at Alexander Correctional Institution.” [Doc. 76-2 at 1 (emphasis

in original)]. The PREA SOP mirrors, in large part, the NCDPS Sexual Abuse Policy.

3 As more fully addressed below, Defendant proceeds in this matter as if the incident that

is the subject of this action occurred on May 18, 2018, not May 14, 2018, as alleged by

Plaintiff.

the manner in which evidence could be submitted to the Court. [Doc. 81]. In

his timely response to Defendant’s motion, Plaintiff submitted a

memorandum; his own affidavit; grievance records; documents from

Plaintiff’s related action in the North Carolina Industrial Commission; an

Alexander Video Recording Request for footage from May 18, 2018; an

observation log of Plaintiff’s movements; and an April 8, 2021 letter from the

North Carolina State Bar acknowledging Plaintiff’s Bar complaint against

Attorney Adrina Bass. [Docs. 82, 82-1].

This matter is now ripe for adjudication.

II. PLAINTIFF’S MOTIONS AND LETTERS

A. Motion for Reconsideration

Plaintiff moves the Court to reconsider its denial of Plaintiff’s motion to

compel discovery. [Doc. 69]. Plaintiff argues that it was impossible for him

to seek an extension of the discovery deadline because he did not “[get] the

discovery” from appointed counsel until after the deadline because the

Attorney General “wait[ed] until the last day of [the] deadline to send

discovery” to his appointed counsel. Plaintiff also argues, in one instance,

that his discovery counsel knew that discovery was incomplete and the video

of the day of the incident “was destroyed.” [Doc. 69 at 2]. Later, however,

Plaintiff claims that his appointed counsel “did not become aware [though]

should have of incomplete discovery….” [Id.]. Finally, Plaintiff claims that

the Court should have relaxed the discovery rules for Plaintiff because he is

a pro se litigant and should not have been required to write a certified letter

to opposing counsel. [Id. at 3].

Plaintiff has not presented any grounds for the requested relief. It was

not impossible for Plaintiff to seek an extension of the discovery deadline.

Contrary to Plaintiff’s assertions, his appointed counsel assisted Plaintiff with

discovery and moved to withdraw as Plaintiff’s counsel 15 days before the

end of the discovery deadline. Plaintiff could have moved pro se for an

extension of the discovery deadline any time after his counsel withdrew

either before or after the expiration of the discovery deadline. Moreover, Rule

37(a) of the Federal Rules of Civil Procedure does not require that Plaintiff

have written a certified letter to opposing counsel to resolve the discovery

dispute, as Plaintiff contends. Rather, Rule 37(a) requires Plaintiff to certify,

i.e., to attest, to the Court that he has attempted in good faith to confer with

opposing counsel before engaging the Court in a discovery dispute. And

Plaintiff failed to do this. Plaintiff’s motion to reconsider is, therefore, denied.4

4 Plaintiff also moves the Court to reconsider its order denying Plaintiff’s motion to seal

and the Court’s instruction that Plaintiff may address the video issue at summary

judgment. [Doc. 69 at 3-6]. Plaintiff argues that he “should not have to wait until summary

judgment to seek inquiry ruling by the court” regarding the video. [Id. at 3]. There is no

such thing as a pre-summary judgment “inquiry ruling.” The purpose of summary

judgment is to determine whether any genuine issues of material fact remain for a jury.

B. Motion for Default Judgment

Plaintiff moves for default judgment against Defendant Butler, arguing

that Defendant’s attorney, Adrina Bass, knows that the incident at issue

occurred on May 14, 2018 but “still presented the 5-18-18 video” to Plaintiff

for viewing on March 18, 2021. [Doc. 71 at 1-2]. Plaintiff argues that “there

is no excuse for not preserving the 5-14-18 video only to destroy evidence.”

[Id. at 2]. Plaintiff contends that “enough evidence exist[s] at this point for

default judgment.” [Doc. 71 at 3]. Plaintiff misunderstands the

circumstances under which a default judgment may be entered. A default

judgment may only be entered following an entry of default. Fed. R. Civ. P.

55(b)(1). An entry of default may be entered by the Clerk when a party’s

failure to plead or otherwise defend an action is show by affidavit or

otherwise. Fed. R. Civ. P. 55(a). Defendant here has not failed to answer

or defend this lawsuit and no default has been entered. There are simply no

grounds for default judgment and Plaintiff’s motion will be denied.

Moreover, Plaintiff presents no viable grounds in support of his motion to reconsider the

Court’s denial of his motion to seal. [See id. at 6]. The Court will, therefore, deny Plaintiff’s

motion to reconsider on these issues as well.

C. Plaintiff’s Letters

Also before the Court are three letters filed by Plaintiff that are directed

to the undersigned and lack a case caption. [Docs. 70, 87, 88]. In previously

striking such a letter, the Court advised Plaintiff that filing letters that are

directed to judges of this Court is “wholly improper” and “[a]ny requests for

relief must be filed as formal motions containing the case caption.” [Doc. 44

at 1; see Doc. 42]. The Court has further advised Plaintiff that it “will not

consider letters filed by Plaintiff regardless of the relief they seek.” [Id. at 2].

Plaintiff ignored these previous admonitions and has filed three more

improper letters directed to the undersigned and without a case caption.

[Docs. 70, 87, 88]. The Court will, therefore, strike these letters and does

not consider their contents here.

III. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a). A factual dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is material only if it might affect the outcome of the suit under

governing law. Id.

The movant has the “initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there

is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not

rely upon mere allegations or denials of allegations in his pleadings to defeat

a motion for summary judgment. Id. at 324. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations …, admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, the

nonmoving party must present sufficient evidence from which “a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at

248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th

Cir. 1995).

When ruling on a summary judgment motion, a court must view the

evidence and any inferences from the evidence in the light most favorable to

the nonmoving party. Anderson, 477 U.S. at 255. “‘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)).

IV. FACTUAL BACKGROUND

The forecast of evidence in the light most favorable to the Plaintiff is as

follows:

In May 2018, Plaintiff was housed at Alexander on H-Block in Cell 16.

[Doc. 82-1 at 12: McClary Aff.]. Defendant Butler was a correctional officer

there. [Doc. 76-6 at ¶ 3: Butler Aff.]. On May 14, 2018, while Plaintiff was in

his cell during breakfast time, Defendant Butler reached through the trap

door and grabbed and squeezed Plaintiff’s testicles and penis. [Doc. 82-1 at

12; see id. at 2]. Plaintiff did not provoke or threaten Defendant Butler,

although Butler had previously threatened Plaintiff. [Doc. 82-1 at 12]. As a

result of this incident, a no contact order was put in place. Defendant Butler

violated it twice “appear[ing] to be obsessed with contact with [Plaintiff].”

[Id.]. Staff was warned about Defendant Butler’s conduct and the incident

was captured on video. [Id.].

Plaintiff filed a grievance regarding the incident which is dated May 14,

2018. In the grievance, he wrote:

On 5-14-18 around 7:30 am breakfast time officer

Butler reached in the trap and grabbed my crotch and

squeezed my penis real hard with my testicles. I

wanted to go to medical but he said Alexander is on

code one lockdown for 2 days now nobody can go to

medical and he laughed at me. Cant go to medical

[Doc. 82-1 at 2 (errors uncorrected)]. The grievance was marked as having

been received on June 8, 2018. [See Doc. 82-1 at 2]. This grievance was

forwarded to the facility head for investigation the same day pursuant to

PREA and the NCDPS Sexual Abuse Policy. [Doc. 82-1 at 3, 5]. Plaintiff

claims that footage from the May 14, 2018 incident has since been destroyed

to cover it up. [Doc. 82 at 3]. There are no PREA investigation materials

from the May 14, 2018 incident before the Court now.

Defendant Butler forecasts only evidence relative to a separate

incident with Plaintiff on May 18, 2018, despite Plaintiff’s plain allegation that

the incident that is the subject of this action occurred on May 14, 2018. [See

Doc. 76 at 3-5]. As to the May 18 incident, Defendant forecasts the following

evidence. On May 18, 2018, Defendant Butler was assigned to the restrictive

housing unit. That morning he gave Plaintiff a breakfast tray through

Plaintiff’s trap door. [Doc. 76-6 at ¶¶ 6-7]. Plaintiff complained about his

eggs and Defendant Butler told Plaintiff they were edible. Defendant Butler

told Plaintiff that the facility was on a Code One lockdown and that he would

be unable to get Plaintiff more eggs. [Id. at ¶¶ 8-10]. Plaintiff replied, “Fuck

you! Get the Sergeant.” [Id. at ¶ 11]. Defendant Butler asked for the tray

back and Plaintiff refused. Defendant Butler gave Plaintiff a direct order to

return the tray and Plaintiff again refused. Defendant then wrote a statement

and provided it to the sergeant on duty. [Id. at ¶¶ 12-14]. Defendant Butler

later passed out canteen slips. Plaintiff “started cussing at [Defendant] due

to the prior encounter at breakfast regarding the tray and eggs.” [Id. at ¶ 15].

Plaintiff called Defendant a “bitch,” threatened to physically assault

Defendant if Plaintiff ever got out of his cell, told Defendant that his mother

was a prostitute and his wife was a “whore,” and told Defendant to go “fuck

yourself.” [Id. at ¶¶ 17-18]. Because of Plaintiff’s behavior, Defendant chose

not to give him a canteen sheet. [Id. at ¶ 19]. During this exchange,

Defendant Butler did not inappropriately touch Plaintiff or grab or squeeze

Plaintiff’s testicles. [Id. at ¶¶ 20, 22].

In support of his summary judgment motion, Defendant Butler

submitted video footage taken in Plaintiff’s wing on May 18, 2018. [Doc. 76-

5; 6/1/2021 Docket Entry]. The footage begins at approximately 7:50 a.m.

and ends at approximately 8:15 a.m.5 It shows Defendant Butler entering

Plaintiff’s wing in the restrictive housing unit. It shows Defendant Butler

processing forms at each inmate’s cell door with no apparent interaction with

any inmate until Defendant Butler reached Plaintiff’s cell. It shows Defendant

Butler stopping at Plaintiff’s cell door at 8:02 a.m. and engaging in a

conversation with Plaintiff. There is, however, no audio in the recording, so

the substance of their conversation is unknown. Defendant remained at

Plaintiff’s cell door for approximately one and a half minutes. Defendant

appeared calm and composed during his entire interaction with Plaintiff.

After the interaction with Plaintiff, Defendant continued processing forms

outside the remaining cell doors. Defendant, however, submits no footage

of the earlier interaction with Plaintiff involving Plaintiff’s breakfast and no

footage of the incident on May 14, 2018 that is the subject of the Complaint.

On May 22, 2018, Alexander staff received a grievance and letter from

Plaintiff regarding the May 18, 2018 incident.6 [Doc. 76-4 at 1]. A PREA

investigation was undertaken and Defendant was relieved of his post duties

5 The video footage skips ahead by seconds and sometimes minutes many times during

the recording. Although nothing significant appears to be missing, there is no explanation

why the recording was made or submitted this way.

6 This grievance and letter are not included in the summary judgment materials submitted

by either party. It is unclear why Plaintiff’s May 14, 2018 grievance was not marked

received until June 8, 2018, while Plaintiff’s grievance regarding the May 18, 2018

incident was marked received on May 22, 2018.

in restrictive housing. [See id. at 1-12]. In his Witness Statement, Plaintiff

provided the following:

On May 18 2018 in the morning when officer Butler

was passing out forms to purchase canteen he did

not give me a form. I asked why he didn’t give me a

form and he said I would have to masturbate in front

of him in order to get a canteen form. Of course I did

not or will ever. It was to humiliate me and ongoing

as was prior sexual harassment.

[Id. at 11 (errors uncorrected)]. The Incident Report provides that “[v]ideo

evidence only shows or suggests that officer Butler had the issue with the

food tray in regard to being in front of inmate McClary’s door.” [Id. at 2]. The

Report further states that the “[v]ideo evidence is included into this package.”

[Id. at 3]. Defendant Butler claimed then and attests now that he did not ask

or instruct Plaintiff to get naked or to masturbate. [Doc. 76-6 at ¶ 21]. The

Report also notes that Defendant Butler had previously “been involved in one

other PREA related incident,” while Plaintiff “has been involved in zero PREA

related incidents.” [Doc. 76-4 at 3]. Ultimately, the investigator found

Plaintiff’s PREA claim to be unsubstantiated. [Id.]. Plaintiff, however, was

not written up for submitting a false PREA claim or charged with threatening

staff in relation to this claim.7 [Doc. 82 at 4].

7 The NCDPS Sexual Abuse Policy provides that inmates who make false PREA claims

may be subject to disciplinary action. [Doc. 76-3 at 31].

V. DISCUSSION

In support of his motion for summary judgment, Defendant Butler

argues that sovereign immunity bars Plaintiff’s official capacity claim; that he

did not sexually assault the Plaintiff on May 18, 2018, and the video footage

supports this fact; and that qualified immunity bars Plaintiff’s individual

capacity claim. [Doc. 76]. Plaintiff, on the other hand, contends that the

assault that is the subject of the Complaint occurred on May 14, 2018, not

May 18; that Plaintiff’s Eighth Amendment rights were violated by the May

14 assault; and that the video of the May 14 assault was improperly

destroyed.

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.;

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.

B. Sexual Assault

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). The Eighth Amendment also protects inmates from sexual

abuse. Schwenk v. Hartford, 204 F.3d 1187, 1196-97 (9th Cir. 2000);

Jackson v. Holley, 666 Fed. App’x 242, 244 (4th Cir. 2016) (“There can be

little doubt that sexual abuse is repugnant to contemporary standards of

decency, and that allegations of sexual abuse can amount to an Eighth

Amendment violation.”). “The Supreme Court has held, however, that ‘not

every malevolent touch by a prison guard gives rise to a federal cause of

action.’” Jackson, 666 Fed. App’x at 244 (citing Wilkins v. Gaddy, 559 U.S.

34, 37, 130 S. Ct. 1175 (2010)). “An inmate who complains of a push or a

shove that causes no discernible injury almost certainly fails to state a valid

excessive force claim.” Wilkins, 559 U.S. at 38, 130 S. Ct. 1175 (internals

quotation marks omitted).

Here, the forecast of evidence taken in the light most favorable to the

Plaintiff shows that Defendant Butler sexually assaulted Plaintiff on May 14,

2018 by reaching through Plaintiff’s trap door and squeezing Plaintiff’s

testicles and penis. Plaintiff filed a grievance regarding the incident, which

was marked received on June 8, 2018 and forwarded to the facility head for

investigation pursuant to the PREA. The record, however, contains no

documents regarding this PREA investigation or any video footage of this

incident. Plaintiff contends the video footage has been destroyed.

The forecast of evidence also shows that, on May 18, 2018, Plaintiff

and Defendant Butler had an exchange regarding Plaintiff’s canteen sheet

during which Butler told Plaintiff he would not give Plaintiff a sheet unless

Plaintiff masturbated in front of Butler. Plaintiff submitted a grievance

regarding this incident, which was referred for a PREA investigation. The

investigator noted that Defendant had been involved in one previous PREA

incident and Plaintiff had been involved in no previous PREA incidents.

Assuming this is accurate and given that Plaintiff’s grievance regarding the

May 14, 2018 incident was not marked received until June 8, 2018, a

reasonable jury could conclude that Plaintiff did not submit the grievance

regarding the May 14 incident until sometime after he submitted the

grievance regarding the May 18 incident. A reasonable jury may also,

therefore, question Plaintiff’s credibility relative to the May 14 incident. A

reasonably jury, on the other hand, may find that the discrepancy lies with

Alexander’s processing of grievance forms or with the investigator’s

documentation. In any case, the forecast of evidence shows that despite the

finding that Plaintiff’s grievance regarding the May 18 incident was

unsubstantiated, Plaintiff was not charged with filing a false PREA claim.

The forecast of evidence also includes video footage of the May 18

canteen sheet incident. Defendant, however, despite claiming to believe the

incident at issue occurred on May 18, 2018, failed to submit footage of the

breakfast tray incident from earlier that morning. The forecast of evidence

shows that this footage was preserved and submitted for review as part of

the PREA investigation of that incident. If Defendant genuinely believes

Plaintiff’s claim is based on events from May 18, 2018, footage from the

entire incident should have been submitted. At trial, a reasonable jury might

question Defendant Butler’s credibility in presenting only footage that shows

him acting calmly but excluding other potentially relevant footage.

At best, it seems there was a breakdown in this case between or

among Defendant Butler, employees of the NCDPS charged with collecting

materials for investigation and discovery in this case, and/or Defendant’s

attorney. In any event, this case cannot be decided as a matter of law on

the record before the Court now. Genuine issues of material fact remain for

a jury and summary judgment for Defendant Butler on Plaintiff’s individual

capacity claim is, therefore, inappropriate. As such, the Court will deny

Defendant’s motion for summary judgment as to this claim.8

VI. CONCLUSION

In sum, for the reasons stated herein, the Court grants summary

judgment for Defendant on Plaintiff’s official capacity claim and denies

summary judgment for Defendant on Plaintiff’s individual capacity claim

because genuine issues of material fact remain for trial as to that claim. The

Court denies Plaintiff’s motions for reconsideration and default judgment and

strikes Plaintiff’s improper letters from the record.

8 Moreover, because Plaintiff has forecast evidence that Defendant violated his

constitutional rights and because the right to be free from sexual abuse by a prison guard

was clearly established before the subject incident, Defendant is not entitled to the

defense of qualified immunity on Plaintiff’s claim. E.W. ex rel. T.W. v. Dolgos, 884 F.3d

172, 178 (4th Cir. 2018). See Woodford v. Ngo, 548 U.S. 81, 118 (2006) (Stevens, J.,

dissenting) (“Accordingly, those inmates who are sexually assaulted by guards, or whose

sexual assaults by other inmates are facilitated by guards, have suffered grave

deprivations of their Eighth Amendment rights.”). See also Chapman v. Willis, No. 7:12-

CV-00389, 2013 WL 2322947, *7 (W.D. Va. May 28, 2013) (collecting cases).

ORDER

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

Judgment [Doc. 75] is GRANTED IN PART as to Plaintiff's official capacity

claim and DENIED IN PART as to Plaintiff's individual capacity claim against

Defendant Butler.

IT IS FURTHER ORDERED that:

(1) Plaintiff's Motion for Reconsideration [Doc. 69] is DENIED;

(2) Plaintiff's Motion for Default Judgment [Doc. 71] is DENIED;

(3) Plaintiff's letter’s [Docs. 70, 87, 88] are hereby STRICKEN from

the record in this matter.

IT IS SO ORDERED.

Signed: August 9, 2021

Martifi Reidinger ey

Chief United States District Judge Ale

20