Hughes v. Propst

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:21-cv-00164-MR

THOMAS HUGHES, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

)

JAMES W. PROPST, )

)

Defendant. )

___________________________ )

THIS MATTER comes before the Court on Defendant’s Motion for

Summary Judgment [Doc. 75] and Plaintiff’s Motions for Court Order [Docs.

82, 83, 85].

I. PROCEDURAL BACKGROUND

Plaintiff Thomas Hughes, proceeding pro se, brings this action

pursuant to 42 U.S.C. § 1983 for the violation of his Eight Amendment rights

while incarcerated at Foothills Correctional Institution (“Foothills CI”) in

Morganton, North Carolina, based on the use of excessive force by

Defendant James Propst, a Correctional Officer at Foothills CI, in

Defendant’s individual capacity only. [Doc. 1; see Docs. 11, 12]. Plaintiff

alleges that, on May 3, 2021, Defendant Propst sprayed him with pepper

spray on verbal provocation alone.1 [Doc. 12 at 2-3]. Plaintiff seeks monetary

relief only, including punitive damages. [Id. at 6; see Doc. 32 at 5].

Plaintiff’s Second Amended Complaint survived this Court’s initial

review under 28 U.S.C. §§ 1915(e)(2) and 1915A and Plaintiff proceeded

with his claim. [Docs. 12, 13]. On October 28, 2022, Defendant moved for

summary judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure. [Doc. 75]. Defendant argues he is entitled to summary judgment

because Heck bars Plaintiff’s claim, issue preclusion effectively resolves

Plaintiff’s claim, Defendant did not use excessive force on Plaintiff, and

Defendant is entitled to qualified immunity. [Doc. 76]. In support of his

summary judgment motion, Defendant submitted a memorandum, his own

Declaration, a Declaration of Counsel, Plaintiff’s North Carolina Department

of Public Safety (NCDPS) Offender Information Sheet, a summary of

Plaintiff’s infraction history, disciplinary records related to the incident, the

NCDPS Use of Force Policy, Plaintiff’s medical records, and video footage

1 Plaintiff’s original Complaint included a four-page “Written Statement of Claim” submitted

under penalty of perjury, [see Doc. 1 at 6-9], and Plaintiff’s Amended and Second

Amended Complaints were verified, [see Doc. 11 at 7, Doc. 12 at 7]. Accordingly, these

submissions will be considered for their evidentiary value here. See Goodman v. Diggs,

986 F.3d 493, 498-99 (4th Cir. 2021) (holding 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”).

of the incident.2 [Docs. 76, 76-1 to 76-2, 78].

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. 79]. Plaintiff responded to

Defendant’s motion. He submitted a memorandum, his own Declaration,

disciplinary records related to the incident, witness statements, and

Defendant’s discovery responses. [Docs. 81, 81-1 to 81-2].

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 Defendant manually filed the video footage pursuant to the Court’s Order at Docket No.

78. [See 11/14/2022 Docket Entry]. The Court will hereinafter reference this footage as

“Doc. 78.”

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. 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

(2007). That is, “[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 non-moving 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, 1356 (1986) (citation

and internal quotation marks omitted).

III. FACTUAL BACKGROUND

The forecast of evidence, in the light most favorable to the non-movant,

is as follows.

On May 3, 2021, Plaintiff was incarcerated at Foothills CI in a

segregation unit. [Doc. 81-1 at ¶ 2: Hughes Dec.], and Defendant Propst was

a Correctional Officer there, [Doc. 76-2 at ¶ 2]. Sometime in the evening that

day, Defendant Propst and Correctional Officer Brittany Green escorted

Plaintiff to the shower area, where Plaintiff took a shower. The showers in

the segregation unit are locked and secured while occupied by inmates.

[Doc. 1 at 6-7]. After some time, around 8:20 p.m., Defendant Propst and

Officer Greene returned to get Plaintiff and two other inmates out of the

shower. [Id. at 6]. Some inmates, not including Plaintiff, had been

“screaming” for Propst to get them out of the showers and Propst seemed

“aggravated about something” when he approached. [Id.]. Plaintiff was in

the middle shower, still partially undressed, when Propst approached the

shower door. Propst asked Plaintiff if Plaintiff had a problem with the way

Propst ran things. Propst and Plaintiff engaged in some verbal sparring and

Plaintiff asked Propst to step away so that Plaintiff could have some privacy

while getting dressed. Propst refused to move away and continued to raise

his voice, accusing Plaintiff of yelling at him to get Plaintiff out of the shower.

Plaintiff retorted, “If I had a problem I’d say it to your face.” [Id. at 7]. Propst

responded that Plaintiff was “fixing to have a real problem.” After Plaintiff

raised his voice and told Defendant Propst to leave him alone, Propst pulled

out his pepper spray and said, “Yell again motherfucker.” [Id.]. Plaintiff

retorted, “Fuck you I dare you to spray me for yelling.” Defendant Propst then

sprayed Plaintiff “in a downward motion from [his] face to [his] torso and [the]

groin area of [his] boxer” shorts. [Doc. 81-1 at ¶ 3]. Defendant Propst gave a

false report regarding the incident, claiming that Plaintiff threatened him and

attempted to spit on him, to justify his use of force.3 [Doc. 1 at 6-7; Doc. 81-

1 at ¶ 3].

The use of force by correctional staff at Foothills CI is governed by the

NCDPS Use of Force Policy. [See Doc. 76-1 at 22-38]. The Policy provides

that, “[t]he use of force shall be permissible only to the extent reasonably

necessary for a proper correctional objective.” [Id. at 23]. Thus, “reasonable

force is authorized in order to prevent an escape or to ensure compliance

with a lawful order or to protect property….” [Id. at 23-24]. “An officer should

attempt non-forcible methods of offender control, but only to the extent

reasonably possible under the circumstances as they appear to that officer.”

[Id. at 24]. “An officer is prohibited from using force solely as a result of

verbal provocation” and “shall not use force against an offender who has

abandoned his resistance or who is effectively restrained.” [Id.]. Pepper

spray, if used, should be sprayed directly into the eyes. [Id. at 26].

After the incident, Plaintiff was allowed to decontaminate and was

medically assessed by Thomas Whisenant, RN. [Doc. 76-1 at 10-12].

3 Defendant Propst, on the other hand, attests as follows. After Propst asked Plaintiff if

Plaintiff had a problem with how Propst ran his wing, Plaintiff charged the shower door

and said, “Fuck you, I’ll beat your ass” and then stated he was going to spit on Defendant.

Defendant then “pulled out [his] pepper spray to be ready.” At the same time that Plaintiff

spit at Defendant, Defendant sprayed Plaintiff with pepper spray. Some of Plaintiff’s spit

landed on Defendant’s face. [Doc. 76-2 at ¶ 3: Propst Dec.]. Defendant Propst reported

the incident to his Sergeant. [Id. at ¶ 4].

Plaintiff was cooperative and reported to Whisenant, “I didn’t spit on that

guy!” [Id. at 11]. Plaintiff’s eyes were red and “burning,” but he reported that

he would be “alright.” [Id.].

As a result of the incident, Plaintiff was charged with three infractions,

Assaulting Staff/Throwing Liquids (A09), Threatening to Harm/Injure Staff

(B18), and Profane Language (B24). [See Doc. 76-1 at 13]. Plaintiff pleaded

guilty to the B18 and B24 offenses and not guilty to the A09 offense, claiming

that he did not spit on Defendant Propst. [Id. at 14, 21].

An investigation of the incident was conducted.4 [See Doc. 81-2 at 1-

2, 15-16, Doc. 76-1 at 14-20]. As part of the proceedings, Petitioner

requested statements of four fellow offenders who witnessed the incident,

Jimmy Dye, Demonte Gilmore, Antwan Hamilton, and Kennedy Beltran.

[Doc. 76-1 at 14; Doc. 81-2 at 1-2]. Their statements generally corroborated

Plaintiff’s version of events, especially Plaintiff’s claim that he did not spit on

Defendant. [See id.]. Petitioner also requested the statement of Officer

Greene. [Doc. 76-1 at 14]. Officer Greene stated that she was cuffing

another inmate when she heard Plaintiff and Defendant Propst arguing.

4 It appears that some of the investigation records are not before the Court, including the

initial incident report, the statements by the inmate witnesses, and other investigation

records. Defendant appears to have selectively omitted these documents and Plaintiff

primarily submitted only excerpts from a later, summary report. [See Docs. 76-1 at 13-

21; Doc. 81-2 at 1-2, 12-16].

Officer Greene saw Defendant Propst “jump back and pull his OC pepper

spray and sprayed offender Hughes.” [Doc. 81-2 at 14]. Officer Greene did

not mention Plaintiff spitting or threatening to spit on Defendant in her

statement. [See id. at 6, 14].

On May 18, 2021, Captain T. Maddox reviewed the statements of

those involved in the incident and the video footage. [Doc. 81-2 at 15]. He

agreed with the investigating officer “that there [is] no evidence to disprove

that offender Hughes did not assault Officer Propst by spitting on him.” [Doc.

81-2 at 15]. Maddox continued, “The issue I have with the incident is that

offender Hughes was secure in a lock[ed] shower. I also concur with the

investigating officer, Officer Propst should have walked away and reported

the incident to the unit Sergeant and the use of O.C. pepper spray was

inappropriate.” [Id.]. A “complete re-investigation” of the incident was

ordered. [See Doc. 76-1 at 14].

On June 14, 2021, a disciplinary hearing was held. [See Doc. 76-1 at

14]. At the hearing, Plaintiff admitted to the B18 and B24 offenses, but

maintained his innocence to the A09 offense. [Doc. 76-1 at 14]. Disciplinary

Hearing Officer (DHO) Randy Mull reviewed the evidence, including

statements by Defendant, Plaintiff, the four inmate witnesses, and Greene,

and video footage of the incident. DHO Mull reported that the video evidence

“shows the offender appears to be at the shower door and the staff being at

the door and he movers slightly and sprays the offender while the offender

was in the shower.” [Id. at 14-15 (errors uncorrected)]. DHO Mull errantly

reported, “It can be seen if the offender spit.”5 [Id. at 15]. Finally, DHO Mull

wrote, “[b]ased on the reporting party’s statement and the investigating

officers report, a finding of guilty is entered for the offense A09.” [Doc. 76-1

at 15].

On July 16, 2021, after the re-investigation had been completed and

Plaintiff was found guilty of the A09 offense, Superintendent Richard Thomas

reviewed the matter. He commented as follows:

Based on the facts and evidence disclosed by the

investigation, it appears that force was not

necessary. The offender was in a locked shower and

officer Propst could have simply turned and walked

away. There are also some inconsistencies in

Propst’s statement and what the video depicts. An

administrative investigation has been entered in

ERS.

[Doc. 81-2 at 16]. On October 29, 2021, Regional Director Jeffrey Daniels

reviewed the matter and agreed with Thomas’ comments. [Id.].

5 It is unclear whether this was a typographical mistake by DHO Hull, and the sentence

should have read, “It can’t be seen if the offender spit.” The forecast of evidence, including

the footage itself, otherwise supports that the footage is inconclusive, depicting only the

very edges of the incident. [See Doc. 78]. The video clearly does not show whether

Plaintiff spat on Defendant Propst. [See id.].

IV. DISCUSSION

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 in order 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).

Moreover, “[c]orrectional officers do not have to be under physical

attack to justify the use of force; they can also use appropriate force ‘to

preserve internal order by compelling compliance with prison rules and

procedures.’” Shiheed v. Harding, 802 Fed. App’x 765, 767 (4th Cir. 2020)

(quoting Brooks v. Johnson, 924 F.3d 104, 112 (4th Cir. 2019)). “‘And we

owe officers wide-ranging deference in their determinations that force is

required to induce compliance with policies important to institutional

security.’” Id. (quoting Brooks, 924 F.3d at 112).

The use of mace, tear gas, or other chemical agents “’in quantities

greater than necessary or for the sole purpose of inflicting pain’” is generally

recognized as a constitutional violation. Iko v. Shreve, 535 F.3d 225, 240

(4th Cir. 2008) (quoting Williams, 77 F.3d at 763). Pepper spray, however,

is not “per se a cruel and unusual punishment,” McCargo v. Mister, 462

F.Supp. 813, 818 (D. Md. 1978), and can be used to “control a recalcitrant

inmate” without violating the Eighth Amendment. Williams, 77 F.3d at 763.

An Eighth Amendment violation may be found when a chemical agent is used

without prior verbal command or after a prisoner has been subdued or

becomes compliant with an officer’s instructions. Pevia v. Shearin, No. ELH-

13-2912, 2015 WL 629001, at *10 (D.Md. Feb. 10, 2015) (collecting cases).

Here, Plaintiff contends that Defendant Propst violated Plaintiff’s rights

under the Eighth Amendment by pepper spraying Plaintiff while Plaintiff was

locked inside a shower. Defendant contends that Plaintiff’s claim is barred

by Heck v. Humphrey, 512 U.S. 477 (1994), or resolved by issue preclusion

because Plaintiff was found guilty of the spitting-related disciplinary offense.

Defendant also contends that he did not use excessive force and that he is

entitled to qualified immunity.

A. Heck

In Heck, the United States Supreme Court held as follows:

[I]n order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness

would render a conviction or sentence invalid, a §

1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a

state tribunal authorized to make such determination,

or called into question by a federal court’s issuance

of a writ of habeas corpus, 28 U.S.C. § 2254. A claim

for damages bearing that relationship to a conviction

or sentence that has not been so invalidated is not

cognizable under § 1983. Thus, when a state

prisoner seeks damages in a § 1983 suit, the district

court must consider whether a judgment in favor of

the plaintiff would necessarily imply the invalidity of

his conviction or sentence; if it would, the complaint

must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has

already been invalidated. But if the district court

determines that the plaintiff’s action, even if

successful, will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff,

the action should be allowed to proceed, in the

absence of some other bar to the suit.

Id. at 486-87 (footnotes omitted; emphasis added). Heck also applies to

disciplinary convictions in prison. See Edwards v. Balisok, 520 U.S. 641,

646 (1997). As such, any claim that “would, if established, necessarily imply

the invalidity of” a disciplinary conviction is not cognizable in an action for

damages under § 1983. Id. Defendant asks the Court to conclude that

allowing Plaintiff “to proceed with his § 1983 claims against [Defendant]

would necessarily imply the invalidity of Plaintiff’s disciplinary infraction.”

[Doc. 76 at 6]. This is not so. Plaintiff was found guilty of an A09 offense for

allegedly spitting on Defendant Propst. Prison officials, however, concluded

that Defendant Propst’s use of pepper spray was “inappropriate,” that

Defendant Propst “should have just walked away,” and that “force was not

necessary” – despite finding Plaintiff guilty of the spitting-related infraction.

The Court, therefore, cannot conclude as a matter of law that a judgment in

Plaintiff’s favor would necessarily imply the invalidity of his A09 offense

conviction. That is, a jury could find that Plaintiff spat on Defendant Propst

and that Defendant Propst, nonetheless, pepper sprayed Plaintiff maliciously

and sadistically for the purpose of causing harm and not to restore discipline.

Plaintiff’s claim, therefore, is not Heck-barred.

B. Issue Preclusion

Defendant also argues that issue preclusion, or collateral estoppel,

resolves Plaintiff’s claims because Plaintiff’s factual allegations in this case

“are nearly identical to those litigated during his prison disciplinary

proceeding.” That is, Defendant contends that he is entitled to summary

judgment because it has been conclusively established that Plaintiff used

profanity, threatened Defendant, and spat on Defendant. [Doc. 76 at 7].

“Issue preclusion bars successive litigation of an issue of fact or law

actually litigated and resolved in a valid court determination essential to the

prior judgment, even if the issue recurs in the context of a different claim.”

Hately v. Watts, 917 F.3d 770, 776-77 (4th Cir. 2019). “When an

administrative agency is acting in a judicial capacity and resolves disputed

issues of fact properly before it which the parties have had an adequate

opportunity to litigate, the courts have not hesitated to apply res judicata.”

Univ. of Tenn. v. Elliot, 478 U.S. 788, 799 (1986). To apply collateral estoppel

to an issue or fact, the proponent must demonstrate that: (1) the issue or fact

is identical to the one previously litigated; (2) the issue or fact was actually

resolved in the prior proceeding; (3) the issue or fact was critical and

necessary to the judgment in the prior proceeding; (4) the judgment in the

prior proceeding is final and valid; and (5) the party to be foreclosed by the

prior resolution of the issue or fact had a full and fair opportunity to litigate

the issue or fact in the prior proceeding. Thompson v. Zych, 2016 WL

4532417, at *2 (W.D. Va. Aug. 29, 2016).

The Fourth Circuit, however, has declined to apply collateral estoppel

to prison disciplinary proceedings. Shepard v. Eubanks, 887 F.2d 1081, at

*1 (4th Cir. 1989) (“It is doubtful that West Virginia would apply the doctrines

of res judicata or collateral estoppel to prison disciplinary proceedings ….,

particularly in light of the difficulties with treating prison officials as judicial

officers.”) (Citations omitted). See Haskins v. Hawk, 2013 WL 1314194, at

*23 (D. Md. Mar. 29, 2013) (declining to apply collateral estoppel to a factual

finding in an inmate grievance proceeding and denying summary judgment

for defendant in prisoner’s § 1983 action).

In Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), the Second Circuit

declined to collaterally estop a prisoner’s § 1983 suit arising out of allegations

that his due process rights were denied in a prison disciplinary proceeding,

despite that the prisoner had received judicial review in state court. Id. at

869. The Court noted that “there is a substantial question as to whether,

under New York law, collateral estoppel should ever apply to fact issues

determined in a prison disciplinary hearing and reviewed for substantial

evidence in a [ ] [judicial review] proceeding, given the ‘procedural laxity’ of

such prison hearings, and the limited nature of substantial-evidence review.”

Id. (citations omitted).

Defendant claims that “[o]ther courts have used prison disciplinary

proceedings to bar subsequent claims under § 1983.” [Doc. 76 at 7 (citing

Rogers v. Maretz, 2012 WL 1192848 at *2-3 (D.N.J. Jan. 17, 2012))]. In

Rogers, however, the factual determinations incident to the disciplinary

infraction at issue were not only determined by the East Jersey State Prison

Administration but also affirmed by the Appellate Division of the New Jersey

Superior Court and the New Jersey Supreme Court. Id. at *2. Defendant

points to no other case, in this District or otherwise, applying collateral

estoppel to prison disciplinary proceedings and the Court declines to do so

here.

Moreover, as with the Heck-bar issue, even if Plaintiff did spit on or

threaten to spit on Defendant Propst, a jury may nonetheless find that

Defendant Propst sprayed Plaintiff with pepper spray in violation of the

Eighth Amendment. As such, genuine issues of material fact would remain

for the jury even if the Court were to collaterally estop a finding inconsistent

with the factual determinations incident to Plaintiff’s disciplinary convictions.

C. Excessive Force

Correctional officers may use appropriate force to restore order by

compelling compliance with prison rules and procedures. Shiheed, 802 Fed.

App’x at 767. Correctional officers, however, may not use pepper spray “in

quantities greater than necessary or for the sole purpose of inflicting pain.”

Iko, 535 F.3d at 240 (citation omitted). The forecast of evidence here shows

that Plaintiff was locked inside a shower, partially undressed, and that

Defendant deployed pepper spray not only to Plaintiff’s eyes, but also across

his body to his groin area. The forecast of evidence also shows that facility

and regional reviewers found that Defendant Propst use of pepper spray was

inappropriate, that force was not necessary, and that Defendant Propst

should have walked away. From this forecast of evidence, a reasonable jury

could conclude that Defendant Propst applied force for the purpose of

causing harm and not to restore order by compelling compliance with prison

rules. The Court, therefore, will deny Defendant’s motion for summary

judgment and leave the determination of whether Defendant Propst used

excessive force to the jury.

D. Qualified Immunity

Defendant also claims that qualified immunity bars Plaintiff’s claim.

“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).

Defendant argues that he is entitled to qualified immunity because no

constitutional violation occurred.6 [Doc. 76 at 12]. Because the jury must

decide whether a constitutional violation occurred here, the Court concludes

that qualified immunity does not bar Plaintiff’s claim. The Court, therefore,

will deny Defendant’s summary judgment motion on these grounds.

6 Defendant also claims, without support or argument, that “the individual rights were not

clearly established such that Defendant would have reasonable notice that he was

violating Plaintiff’s constitutional rights.” [Doc. 76 at 12]. The Court declines to further

address this plainly incorrect and unsupported assertion.

V. PLAINTIFF’S MOTIONS

Also pending are three duplicative motions by Plaintiff in which he

seeks return of the exhibits he filed in support of his response to Defendant’s

summary judgment motion. [Docs. 82, 83, 85; see Doc. 81-2 at 1-16].

Plaintiff states that he needs the documents returned to him because he

does not have copies of them or access to a copy machine and he needs

them for evidence at trial. [Doc. 82 at 1, Doc. 83 at 1, Doc. 85 at 1]. The

Court will deny Plaintiff’s motions. The Clerk retains original copies of

documents filed with the Court. Moreover, Plaintiff failed to include payment

for the copies he requests. A litigant is ordinarily required to pay his own

litigation expenses, even if he is indigent. See United States v. MacCollom,

426 U.S. 317, 321 (1976) (“The established rule is that the expenditure of

public funds is proper only when authorized by Congress….”). The Court is

not a copying service. Should Plaintiff need copies of documents filed in the

docket in this matter, he may pay for the copies he seeks at the standard

rate of $.50 per page. See https://www.ncwd.uscourts.gov/court-fees.

VI. CONCLUSION

For the reasons stated herein, the Court will deny Defendant’s motion

for summary judgment.

ORDER

IT IS, THEREFORE, ORDERED that the Defendant's Motion for

Summary Judgment [Doc. 75] is DENIED.

IT IS FURTHER ORDERED that Plaintiffs Motions for Court Order

[Docs. 82, 83, 85] are DENIED.

IT IS SO ORDERED.

Signed: April 24, 2023

Martifi Reidinger ey

Chief United States District Judge “AES

21