Grady v. Smith

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:20-cv-00095-MR

TRACEY TERRELL GRADY, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

B.S., et al., )

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on Defendants Steve Morton, Kyle

Purser, and Sawyer Baucom’s Motion for Summary Judgment [Doc. 60].

Also pending is the Plaintiff’s “Motion for Summary Judgment Filed in Legal

Opposition to the Defendants’ Motion for Summary Judgment” [Doc. 69].

I. BACKGROUND

The incarcerated Plaintiff Tracey Terrell Grady, proceeding pro se, filed

this action pursuant to 42 U.S.C. § 1983 and North Carolina law addressing

incidents that allegedly occurred in Monroe, North Carolina.1 The Plaintiff’s

1 The Plaintiff is a pretrial detainee at the Union County Jail (UCJ) on charges of second-

degree kidnapping, second-degree forcible rape, second-degree force sex, assault by

strangulation, injury to trees/crops/land of another, and crime against nature, Case Nos.

19CR052183, 19CR052184, and 19CR052185. This information was gleaned, in part,

from the Union County Sheriff’s Office (UCSO) website. See

http://sheriff.co.union.nc.us/InmateDetail.aspx?navid=637908752248365595 (last

accessed June 15, 2022); Fed. R. Evid. 201.

verified2 Complaint was dismissed on initial review, and the Plaintiff was

granted the opportunity to amend. [Doc. 1: Complaint; Doc. 13: Order on

Initial Review of the Complaint]. The Plaintiff’s unverified Amended

Complaint passed initial review on claims of excessive force against

Defendants Kyle Purser, a Monroe Police Department (“MPD”) detective;

Sawyer Baucom, an MPD officer; and Steve Morton, an MPD lieutenant, as

well as a claim of retaliation against Defendant Morton. [Doc. 14: Amended

Complaint; Doc. 21: IR of the Am. Complaint]. The Court exercised

supplemental jurisdiction over the Plaintiff’s North Carolina assault claims

against the Defendants. [Id.]. The Plaintiff seeks injunctive relief,

compensatory and punitive damages, and a jury trial. [Id. at 11].

Defendants Morton, Purser, and Sawyer filed the instant Motion for

Summary Judgment. [Doc. 60; see Doc. 61]. 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

2 The Plaintiff’s original Complaint consists of a total of 18 pages. It is presented on an

eleven-page form provided by the Court, with six additional pages attached and included

within, and one additional page added at the end. The eleventh page of the form

Complaint (which, with the additional pages added, became the seventeenth page of the

Complaint) is signed and dated by the Plaintiff. The eighteenth page of the Complaint

appears to be a page from a different form used for seeking to proceed without prepaying

costs or fees. This last page is also signed by the Plaintiff, but under penalty of perjury.

While the Plaintiff’s intent in attaching this last page is unclear, it appears that he may

have done so in order to verify his Complaint. Therefore, giving the Plaintiff the benefit

of the doubt, the Court will construe the Complaint as verified.

summary judgment motion and of the manner in which evidence could be

submitted to the Court. [Doc. 67: Roseboro Order]. The Plaintiff filed a

“Motion for Summary Judgment … in Legal Opposition to the Defendants’

Motion for Summary Judgment” [Doc. 69 at 1] and supporting materials in

which he asserts that a genuine dispute of material fact exists for trial.3 He

also complains about various Court rulings in this case, and he alleges that

defense counsel have engaged in misconduct. [Id.]. The Defendants filed a

Reply and additional exhibits, arguing that the Plaintiff’s Motion is untimely

and improper, denying any misconduct, and reiterating their summary

judgment arguments. [Docs. 70, 70-1, 70-2, 70-3, 70-4, 70-5, 71]. 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

3 These materials include an “Affidavit” [Doc. 69 at 3]; “Memorandum of Law” [Doc. 69 at

5]; “Summary of Facts” [id. at 6]; “Appendix to Statement of Material Facts” [id. at 7]; and

exhibits [Docs. 69-1, 69-2], none of which are verified [see Doc. 69 at 12].

(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. To that end, only evidence admissible at trial may be considered by the

Court on summary judgment. Kennedy v. Joy Technologies, Inc., 269 F.

App’x 302, 308 (4th Cir. 2008) (citation omitted).

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.

Scott, 550 U.S. at 380.

III. FACTUAL BACKGROUND

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

undisputed except as otherwise noted.

Lieutenant Morton interviewed the Plaintiff on May 23, 2019 about a

rape case that Lieutenant Morton was investigating. [Doc. 60-2: Morton

Decl. at ¶ 3]. During that interview, the Plaintiff told Morton that he “pleads

the 5th.” [Id.].

The next day, May 24, 2019, Lieutenant Morton, Detective Purser,

Officer Baucom, and other MPD personnel responded to the Plaintiff’s

residence to arrest him on warrants for second-degree forcible rape and

other charges. [Id. at ¶ 4]. The Plaintiff lived in a separate residence in the

backyard of his mother’s home. [Id. at ¶ 5]. When officers first arrived at the

scene, they met with the Plaintiff’s mother in the front yard; she escorted

officers to the backyard so that they could arrest the Plaintiff. [Id. at ¶ 6].

According to the Defendants, officers made contact with the Plaintiff

upon entering the backyard when they saw the Plaintiff was standing on his

front porch. [Doc. 60-2: Morton Dec. at ¶ 7; Doc. 60-3: Baucom Dec. at ¶ 5;

Doc. 60-12: Gutierrez Dec. at ¶¶ 4-5; Doc. 60-13: Purser Dec. at ¶ 5].

According to the Plaintiff, Officer Baucom “grabbed [him] out the door of [his]

room.…” [Doc. 1: Complaint4 at 6, 11].

Lieutenant Morton told the Plaintiff that he was being arrested for active

warrants. [Doc. 60-2: Morton Dec. at ¶ 8]. Officer Baucom handcuffed the

Plaintiff using two sets of linked handcuffs due to the Plaintiff’s size. [Doc.

60-3: Baucom Dec. at ¶ 7]. The Plaintiff did not resist being taken into

custody. [Id. at ¶ 8].

According to the Defendants, the officers did not use any force other

than gently placing handcuffs on the Plaintiff’s wrists [Doc. 60-2: Morton Dec.

at ¶ 10; Doc. 60-3: Baucom Dec. at ¶ 8; Doc. 60-12: Gutierrez Dec. at ¶ 8;

Doc. 60-13: Purser Dec. at ¶ 9], and Officer Baucom slowly walked the

Plaintiff from the backyard to his police vehicle without incident [Doc. 60-3:

Baucom Dec. at ¶ 9]. According to the Plaintiff, Officer Baucom “push[ed]

[the Plaintiff] to the car” while the Plaintiff was “bound in handcuffs, … hurt

and injured….” [Doc. 1: Complaint at 6, 11].

When the Plaintiff and Officer Baucom arrived at the vehicle, Baucom

states that he opened the rear passenger door and moved the seatbelt out

4 Although the Plaintiff filed an Amended Complaint, his original Complaint was verified.

A verified complaint is equivalent to an affidavit in opposition to summary judgment, even

when the Amended Complaint that superseded it is unverified. See Goodman v. Diggs,

986 F.3d 493, 498 (4th Cir. 2021).

of the Plaintiff’s way to allow the Plaintiff easier access to the backseat. [Doc.

60-3: Baucom Dec. at ¶ 10]. The Plaintiff sat down in the backseat and

Officer Baucom closed the door without injuring the Plaintiff. [Id. at ¶ 11].

According to the Plaintiff, Officer Baucom used racial slurs and “slammed

[Plaintiff’s] head against the door,” such that “the hard impact injured

[Plaintiff’s] neck and back…” in an act of “rac[ially] motivated and

deliberate[ly] malic[ious] violence and rage…” which made the Plaintiff “fear[]

for [his] life….” [Doc. 1: Complaint at 6, 11].

Officer Baucom then drove the Plaintiff to MPD. [Doc. 60-3: Baucom

Dec. at ¶ 12]. During the drive, the Plaintiff asked Baucom about the charges

against him and Baucom answered his questions. [Id. at ¶ 13]. During the

drive, the Plaintiff never complained of any injuries, pain, or excessive force,

did not request medical treatment, and showed no indication of injury or pain.

[Id. at ¶ 14]

Upon arriving at MPD, Officer Baucom opened the rear passenger

door to allow the Plaintiff out of the vehicle. [Id. at ¶ 15]. Officer Baucom

assisted the Plaintiff’s leg out of the vehicle, and the Plaintiff stepped out of

the vehicle himself. [Id. at ¶ 16]. Officer Baucom escorted the Plaintiff up a

flight of stairs into the MPD by gently holding the Plaintiff’s arm to ensure he

did not trip as he walked up the stairs. [Id. at ¶ 17]. Officer Baucom escorted

the Plaintiff into the MPD interview room, and the Plaintiff sat down in a chair.

[Id. at ¶ 18].

Once the Plaintiff was seated in the interview room, Lieutenant Morton

stuck his head in the room and said “You still don’t want to talk, right?” and

the Plaintiff responded “No, I want to call my lawyer now.” [Doc. 60-2: Morton

Dec. at ¶ 12]. A conversation then ensued about the Plaintiff contacting his

lawyer. Lieutenant Morton denies ever touching the Plaintiff during this

conversation. [Doc. 60-2: Morton Dec. at ¶ 13]. The Plaintiff did not complain

of injury, pain, or excessive force, and did not request any medical attention.

[Doc. 60-2: Morton Dec. at ¶ 14]. After the discussion, Lieutenant Morton

left the room and the Plaintiff fell asleep, snoring, for approximately 20

minutes. [Doc. 60-2: Morton Dec. at ¶ 15]. When Lieutenant Morton came

back into the interview room, he asked the Plaintiff to consent to a buccal

swab, and the Plaintiff declined. [Doc. 60-2: Morton Dec. at ¶ 16]. Lieutenant

Morton told the Plaintiff that Baucom was going to transport him to UCJ.

[Doc. 60-2: Morton Dec. at ¶ 17].

After the Plaintiff and Officer Baucom left the interview room, the

Plaintiff told officers that he needed to use the restroom, and he was allowed

to do so. [Doc. 60-2: Morton Dec. at ¶ 18]. Officer Baucom then escorted

the Plaintiff back to his police vehicle without incident. [Doc. 60-2: Morton

Dec. at ¶ 19]. As the Plaintiff got in the backseat, Officer Baucom’s only

physical contact with him was to touch the Plaintiff’s foot to ensure it would

not get caught in the car door. [Doc. 60-2: Morton Dec. at ¶ 20]. Officer

Baucom shut the door without injuring the Plaintiff and transported him to

UCJ. [Doc. 60-2: Morton Dec. at ¶ 21]. Detective Purser and Lieutenant

Morton did not go to UCJ with the Plaintiff and Officer Baucom. [Doc. 60-2:

Morton Dec. at ¶ 22; Doc. 60-4: Plaintiff’s Depo. at 4 (Plaintiff only spoke to

Lt. Morton once after his arrest, when the Plaintiff pled the Fifth and asked

for counsel)].

When the Plaintiff arrived at UCJ, he was medically screened. It was

noted that he did not have any visible signs of illness, injury, bleeding, pain,

or other symptoms suggesting the need for immediate emergency medical

referral. [Doc. 60-5: UCJ Inmate Med. Questionnaire at 1]. However, the

Plaintiff claims in his Complaint that he had sustained neck and back injuries

and was denied medical treatment at UCJ. [Doc. 1: Complaint at 11].

The Defendants deny that they used excessive force against the

Plaintiff; witnessed any other officer do so; heard the Plaintiff make any

complaints of injury, pain, or excessive force or make any request for medical

attention; and never retaliated against him or denied him medical treatment.

[Doc. 60-2: Morton Dec. at ¶¶ 14, 25-31; Doc. 60-3: Baucom Dec. at ¶¶ 14,

27-32; Doc. 60-12: Gutierrez Dec. at ¶¶ 24-30; Doc. 60-13: Purser Dec. at

¶¶ 14-18].

The Defendants have submitted video files containing the footage from

body cameras worn by Officers Baucom [Doc. 65, Exs. 5, 7] and Alan

Gutierrez5 [id. at Ex 8]; the interview room at the MPD [id. at Ex. 6]; and

Officer Baucom’s in-car camera [id. at Exs. 9, 10]. Footage from Officer

Baucom’s body camera at the time of the Plaintiff’s arrest [id. at Ex. 5] shows

the following events:

14:39:24 Officer Baucom’s body worn camera begins recording

while Baucom is still driving to the Plaintiff’s residence for

the arrest

14:40:19 Officer Baucom parks in front of the residence and exits his

vehicle

14:41:06 All officers enter the residence’s backyard with the

Plaintiff’s mother and encounter the Plaintiff on his front

porch

14:41:39 Officers place two sets of handcuff’s on the Plaintiff’s wrists

behind the Plaintiff’s back

5 Officer Gutierrez is not a Defendant in this case. Officer Gutierrez’s body-worn camera

largely captures the same events as Officer Baucom’s body-worn camera, from a different

angle.

14:42:03 Officer Baucom pats down the Plaintiff

14:43:04 Officer Baucom walks the Plaintiff to his police vehicle

14:43:50 Officer Baucom leans into the vehicle and moves the

seatbelt out of the way so that the Plaintiff can sit down in

the backseat

14:44:01 The Plaintiff says “I’m too tall for this seat,” Officer Baucom

responds “I’ve seen bigger dudes get in there, man,” and

then the Plaintiff sits in the vehicle without assistance

14:44:09 Officer Baucom asks the Plaintiff “You’re good?” and

unsuccessfully attempts to fasten Plaintiff’s seatbelt; the

Plaintiff asks for his hands to be secured in the front

14:44:31 Plaintiff states that he has “a bad back and a bad knee,”

and Officer Baucom explains that he cannot be cuffed in

front pursuant to policy

14:44:41 Officer Baucom closes the door without injuring the Plaintiff

14:46:58 Officer Baucom enters the driver’s seat and answers the

Plaintiff’s questions about the reason for his arrest

14:49:12 Officer Baucom transports the Plaintiff to MPD while

continuing to answer the Plaintiff’s questions

14:50:45 The Plaintiff complains that “Sitting back here I’m going to

get some cramps” and Officer Baucom responds “We’ll try

and get there as soon as possible”

15:00:56 The vehicle arrives at MPD and parks

15:01:52 Officer Baucom exits the vehicle, opens the rear passenger

door, and assists the Plaintiff’s right leg out of the car’s door

jamb

15:02:20 The Plaintiff exits the vehicle by himself

15:02:55 Officer Baucom escorts the Plaintiff up a flight of stairs into

the MPD

15:03:34 Officer Baucom escorts the Plaintiff into the MPD interview

room and the Plaintiff sits in a chair by himself; the Plaintiff

again asks to be cuffed in the front, and Officer Baucom

responds “We’ll ask CIB when they get here”

15:04:54 Lieutenant Morton puts his head into the doorway of the

interview room and says to the Plaintiff, “You still don’t want

to talk, right?” and the Plaintiff responds “No, I want to call

my lawyers now;” Morton informs the Plaintiff that he can

contact his lawyer once he gets to the jail

Video footage from the MPD interview room [Doc. 65, Ex. 6] begins

during the conversation between the Plaintiff and Lieutenant Morton and

partial overlaps the footage from Officer Baucom’s body camera, and

additionally shows:

11:04:48 The conversation between Lieutenant Morton and Plaintiff

continues

11:10:28 Lieutenant Morton exits the interview room, leaving the

Plaintiff alone in the interview room

11:17:52 Plaintiff begins snoring

11:31:12 Lieutenant Morton enters the interview room and requests

a DNA swab, which the Plaintiff refuses

11:32:10 Officer Baucom escorts the Plaintiff out of the interview

room

11:33:23 From outside the interview room, the Plaintiff appears to

ask for the restroom; he is told that he will have to keep the

door open and that, although his cuffs have been loosened,

he must remain handcuffed behind him pursuant to policy

11:35:17 Sounds of water running, then walking

The second video from Officer Baucom’s body worn camera [Doc. 65,

Ex 7] begins as he and the Plaintiff exit the MPD and depicts the following

events:

15:35:25 Officer Baucom escorts the Plaintiff out of the MPD into the

police vehicle

15:36:30 The Plaintiff gets into the vehicle’s backseat by himself

15:36:47 Officer Baucom tucks in the Plaintiff’s right foot to clear it

from the car’s door jamb, then closes the door

15:37:08 Officer Baucom enters the vehicle and drives the Plaintiff

to UCJ

15:49:49 The vehicle arrives at UCJ

Two video excerpts taken from Officer Baucom’s in-car camera while

Baucom transported the Plaintiff from his home to MPD, and then from MPD

to UCJ [Doc. 65, Exs. 9 and 10, respectively] depict the Plaintiff’s face and

reveal no signs of pain, injury, or distress.

IV. DISCUSSION

A. Defendants’ Motion for Summary Judgment

1. Excessive Force

The Fourth Amendment prohibits police officers from using force that

is “excessive” or not “reasonable” in the course of making an arrest. Graham

v. Conner, 490 U.S. 386, 388 (1989); Meyers v. Baltimore Cnty., Md., 713

F.3d 723 (4th Cir. 2013). Whether an officer has used excessive force to

effect an arrest is based on “objective reasonableness,” taking into account

“the severity of the crime at issue, whether the suspect poses an immediate

to the safety of the officers or others, and whether he is actively resisting or

attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 399. An

officer is “authorized to take such steps as [are] reasonably necessary to

protect [his] personal safety and to maintain the status quo during the course

of the stop.” United States v. Hensley, 469 U.S. 221, 235 (1985).

The Fourth Circuit recognizes a cause of action for bystander liability

“premised on a law officer’s duty to uphold the law and protect the public

from illegal acts, regardless of who commits them.” Stevenson v. City of

Seat Pleasant, Md., 743 F.3d 411, 416-17 (4th Cir. 2014) (quoting Randall v.

Prince George’s Cnty., Md., 302 F.3d 188, 203 (4th Cir. 2002)). A “bystander

officer” can be liable for his or her nonfeasance if he or she: “(1) knows that

a fellow officer is violating an individual’s constitutional rights; (2) has a

reasonable opportunity to prevent the harm; and (3) chooses not to act.” Id.

at 204.

Here, the Plaintiff has failed to present a forecast of evidence from

which a reasonable jury could conclude that the any of the Defendants used

excessive force or failed to intervene in order to prevent the use of such

force. The Plaintiff’s forecast of evidence consists only of the allegations in

his verified Complaint that Defendants Baucom, Purser, and Morton used

excessive force and/or failed to intervene. This forecast of evidence,

however, is “so utterly discredited by the record that no reasonable jury could

. . . believe[ ] him.” Scott, 550 U.S. at 380. The videos of these events

demonstrate that the Defendants’ physical contact with the Plaintiff was

objectively reasonable and was reasonably necessary in order to place the

Plaintiff in handcuffs, assist him into and out of a police vehicle for transport,

escort him in an interview room, and transport him to UCJ. The video

evidence also reveals that at no time did the Plaintiff appear injured or

complain of excessive force, pain, or injury. [See Doc. 65, Ex. 5-8].

Furthermore, the Plaintiff’s claim that Defendant Morton used excessive

force against him while at UCJ is belied by the Plaintiff’s own deposition

testimony that his only encounter with Defendant Morton occurred in the

MPD interview room. [Doc. 60-4 at 4; see also Doc. 60-2: Morton Dec. at ¶

22].

Accordingly, the Court concludes that the Defendants are entitled to

judgment as a matter of law on the Plaintiff’s excessive force and failure to

protect claims. The Court further concludes that the Defendants are entitled

to summary judgment with respect to the North Carolina assault claims. See

generally Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994) (on summary

judgment, “[t]he parallel state law claim of assault and battery is subsumed

within the federal excessive force claim….”); see, e.g., Hunt by and through

Muse v. Smith, 2020 WL 3066616 (E.D.N.C. June 9, 2020) (because the

court concluded that the defendant did not violate the Fourth Amendment by

using excessive force, summary judgment was also granted on the parallel

state law claims of assault and battery).

The Court further concludes, after carefully reviewing the Plaintiff’s

allegations and the parties’ forecasts of evidence, that these claims are

frivolous and malicious. See 28 U.S.C. §§ 1915(e)(2)(B)(i), 1915A(b)(1).

2. Retaliation

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, 977 F.3d 294, 299 (4th Cir.

2020) (citing 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)). Bare or conclusory assertions of retaliation are insufficient

to establish a retaliation claim. Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).

In the prison context, retaliation claims are treated with skepticism because

“[e]very act of discipline by prison officials is by definition ‘retaliatory’ in the

sense that it responds directly to prisoner misconduct.” Id.

Construing the allegations liberally, the Plaintiff contends that

Defendant Morton withheld medical treatment at UCJ for the injuries he

received as the result of excessive force, in retaliation for the Plaintiff having

exercised his right to remain silent. [Doc. 14: Am. Compl. at 4, 11].

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

Defendant Morton retaliated against him by withholding medical treatment at

UCJ. As discussed in Section A.1, supra, the Plaintiff’s excessive force and

failure to intervene claims are conclusively refuted by the forecast of

objective evidence. The forecast of objective evidence likewise reveals that

the Plaintiff was not injured between his arrest and his arrival at UCJ, and

that he never requested medical care during these events. [See Doc. 65,

Ex. 5-8]. Nor has the Plaintiff forecast any credible evidence that Defendant

Morton somehow prevented him from receiving medical care at UCJ. The

record reflects that the Plaintiff was medically screened upon arriving at UCJ,

that he was not injured, and that no medical care was needed. [See Doc.

60-5: UJC Inmate Med. Questionnaire]. Moreover, the Plaintiff admitted in

his deposition that he only met with Defendant Morton in the MPD interview

room. [Doc. 60-4: Plaintiff’s Depo at 4; Doc. 65, Ex 6]. The Plaintiff has not

forecast any evidence that he interacted with Defendant Morton at UCJ

whatsoever, much less any evidence of an interaction where retaliation

occurred. To the contrary, the Defendants have forecast evidence that

Defendant Morton did not retaliate against the Plaintiff, deny him medical

care, or interact with him at UCJ whatsoever. [Doc. 60-2: Morton Dec. at ¶¶

27-31]. The Plaintiff’s version of events is so utterly discredited by the record

that no reasonable jury could have believed him. See Scott, 550 U.S. at 380.

Defendant Morton is, therefore, entitled to judgment as a matter of law on

the Plaintiff’s retaliation claim.

The Court concludes, after carefully reviewing the Plaintiff’s allegations

and the parties’ forecasts of evidence, that the retaliation claim is frivolous

and malicious. See 28 U.S.C. §§ 1915(e)(2)(B)(i), 1915A(b)(1).

3. 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).

Because the Plaintiff has not presented a forecast of evidence that the

Defendants violated a constitutional right, the Defendants are also entitled to

summary judgment on the grounds of qualified immunity. Therefore, the

Court grants summary judgment for the Defendants on this ground as well.

B. Plaintiff’s Motion for Summary Judgment

The Plaintiff purports to seek summary judgment “in Legal Opposition”

to the Defendants’ Motion for Summary Judgment. [Doc. 69]. He contends

that there is a genuine dispute of material fact for trial, and that impropriety

and misconduct have occurred in these proceedings.6 He argues, inter alia,

that the Court sealed his medical records without his consent [Doc. 69-7];

that the Court issued an order and subpoena permitting Defendants’ counsel

to intercept his jail mail [Doc. 69 at 11]; and that counsel for Defendants

forged his signature on a medical release form, altered his deposition

testimony, and intercepted his jail mail [id. at 7, 10-11].

The Plaintiff’s Motion is untimely. The Plaintiff filed his Motion on

September 21, 2021,7 19 days after the motions deadline. [Doc. 30]. The

Court may, for good cause, extend the time when an act may or must be

done on a motion made after the time has expired “if the party failed to act

because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Here, the Plaintiff

has failed to demonstrate that his untimely Motion for Summary Judgment

6 The Court will not attempt to address all of the Plaintiff’s allegations of misconduct and

impropriety. Any claim or argument not separately addressed in this discussion has been

considered and rejected.

7 Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prisoner mailbox rule);

Lewis v. Richmond City Police Dep’t, 947 F.2d 733 (4th Cir. 1991) (applying prisoner

mailbox rule to a § 1983 case).

was filed late due to excusable neglect, nor is the untimely filing supported

by good cause.8

Moreover, the Plaintiff’s allegations of impropriety and misconduct are

without merit. The Plaintiff’s argument that the Court improperly sealed his

medical records in the Court’s record without his consent is nonsensical.

[Doc. 69-7]. The Court sealed those records on Defendants’ Motion to

protect the Plaintiff’s confidential medical information from public view.9

[Docs. 62, 68]. Although the records were sealed in the Court’s file, counsel

for Defendants provided the Plaintiff with an unsealed copy of those records.

[See Doc. 71]. The Plaintiff’s present request to unseal his private medical

records on the Court’s docket would serve no purpose other than to expose

his confidential medical information to the public’s view.

The Plaintiff’s contention that the Court issued an order and subpoena

allowing Defendants’ counsel to intercept his jail mail is incorrect. [Doc. 69

at 7, 10-11]. No such documents exist or were ever entered in this case.

The Court has carefully examined the Plaintiff’s allegations that

Defendants’ counsel engaged in serious acts of misconduct by forging his

8 To the extent that the Plaintiff’s filing can be construed as a Response to the Defendant’s

Motion for Summary Judgment, the Plaintiff’s request for summary judgment within his

pleading is improperSee LCvR 7.1(c)(2) (“Motions shall not be included in responsive

briefs….”).

9 The Plaintiff did not object to the Motion within the response time.

signature, altering his deposition testimony, and intercepting his jail mail.

The Court has carefully reviewed the Defendants’ response, the Court’s

records, and the relevant exhibits and finds that the Plaintiff’s allegations of

misconduct are frivolous, conclusively refuted by the record, and warrant no

serious discussion. See generally Scott, 550 U.S. at 380. Accordingly, the

Plaintiff’s allegations of impropriety and misconduct are dismissed and

denied.

IV. CONCLUSION

For the reasons stated herein, the Court grants Defendants’ Motion for

Summary Judgment, dismisses the Plaintiff’s “Motion for Summary

Judgment Filed in Legal Opposition to the Defendants’ Motion for Summary

Judgment,” and finds the Plaintiff’s claims to be frivolous and malicious.

ORDER

IT IS, THEREFORE, ORDERED that:

1. Defendants’ Motion for Summary Judgment [Doc. 60] is

GRANTED, and this action is DISMISSED WITH PREJUDICE.

2. The Plaintiff’s “Motion for Summary Judgment Filed in Legal

Opposition to the Defendants’ Motion for Summary Judgment”

[Doc. 69 at 1] is DISMISSED and DENIED.

3. The Court finds that the Plaintiffs claims are frivolous and

malicious pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A.

The Clerk is respectfully directed to terminate this action.

IT IS SO ORDERED.

Signed: June 21, 2022

5 a wail

< Reidinger ey

Chief United States District Judge MS

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