The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:22-cv-00059-MR
BRYAN KEITH HALL, )
)
Plaintiff, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
)
B. SETSER, et al., )
)
Defendants. )
___________________________ )
THIS MATTER comes before the Court on Defendants’ Motion for
Summary Judgment [Doc. 26] and Plaintiff’s Motion to Withdraw as Attorney
[Doc. 37].
I. PROCEDURAL BACKGROUND
Plaintiff Bryan Keith Hall (“Plaintiff”) brings this action pursuant to 42
U.S.C. § 1983 for the violation of his Eighth Amendment rights while
incarcerated at Foothills Correctional Institution (“Foothills”) in Spruce Pine,
North Carolina, based on the use of excessive force by Defendants Bennett
Setser, III; Brandon Trivette; Samuel Poole; and Ethan Mangum, all
identified as officials at Foothills.1 [Doc. 1]. In his unverified Complaint,
1 Although Plaintiff’s Complaint was filed pro se, he is now represented by counsel.
Plaintiff alleged that that, on May 14, 2020, at Foothills Minimum Custody
Unit (FMCU), Defendants assaulted him while he was restrained in
handcuffs. Plaintiff alleges that he was knocked unconscious during the
assault and that he suffered a broken nose requiring reconstructive surgery,
as well as a hematoma on his forehead, a badly bruised shoulder, and a
concussion. [Id. at 4]. Plaintiff seeks monetary relief only. [Id. at 5].
Plaintiff’s Complaint survived this Court’s initial review under 28 U.S.C.
§§ 1915(e)(2) and 1915A and Plaintiff proceeded with his Eighth Amendment
claim. [Doc. 7]. On March 1, 2023, Defendants moved for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. [Doc. 26].
Defendants argues that they are entitled to summary judgment because
Defendants did not violate Plaintiff’s constitutional rights and qualified
immunity bars Plaintiff’s claim. [Doc. 27]. In support of their motion,
Defendants submitted a memorandum; their own Declarations; Plaintiff’s
North Carolina Department of Public Safety2 (NCDPS) Offender Information
Sheet, a summary of Plaintiff’s infraction history, an Incident Report,
disciplinary records, the NCDPS Use of Force Policy, and unpublished case
law. [Docs. 27, 28, 28-1 to 28-11].
2 The NCDPS is now called the North Carolina Department of Adult Corrections (NCDAC).
The Court, however, will refer to it as the NCDPS here in conformity with the forecast of
evidence before the Court.
Thereafter, the Court entered an order in accordance with Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the requirements
for filing a response to the summary judgment motion and of the manner in
which evidence could be submitted to the Court. [Doc. 29]. The next day,
Plaintiff’s counsel, Locke G. Ho, appeared in the case “with respect to
Summary Judgment briefing.” [Doc. 27]. After the Court granted Plaintiff
more time to respond to Defendants’ summary judgment motion, another
attorney with Mr. Ho’s firm, William Walker, also filed an appearance as
counsel for Plaintiff “with respect to Summary Judgment briefing.” [3/8/2023
Text Order; Doc. 32]. Thereafter, Plaintiff responded to Defendants’ motion.
[Doc. 34]. Plaintiff submitted a memorandum, a copy of the Complaint, his
own Declaration, and his medical and grievance records. [Docs. 34, 34-1 to
34-4]. Defendants notified the Court that they would not be filing a reply.
[Doc. 36].
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.
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.
In May 2020, Plaintiff was a prisoner of the State of North Carolina
incarcerated in the FMCU. [Doc. 34-2 at ¶ 2: Hall Aff.]. At that time,
Defendant Setser was a Sergeant at Foothills and Defendants Trivette,
Poole, and Mangum were Correctional Officers there. [Doc. 28-6 at ¶ 3:
Setser Dec.; Doc. 28-7 at ¶ 3: Trivette Dec.; Doc. 28-8 at ¶ 3: Poole Dec.;
Doc. 28-9 at ¶ 3: Mangum Dec.]. On May 12, 2020, Plaintiff filed a grievance
concerning Defendant Poole. [Doc. 34-2 at ¶ 3]. Before May 14, 2020,
Plaintiff had not been charged with any disciplinary infractions and did not
cause trouble as an inmate. [Id. at ¶ 4]. On May 14, 2020, at approximately
8:00 a.m., Assistant Unit Manager Misty Crawford called Plaintiff to
Defendant Setser’s office and told Plaintiff that his May 12, 2020 grievance
concerning Defendant Poole needed to be redone. Plaintiff asked for
another grievance to fill out and Ms. Crawford directed Plaintiff to leave the
office. Plaintiff complied. [Id. at ¶ 6]. While Plaintiff was in the FMCU
dayroom preparing for work, several officers, including Defendants Trivette,
Poole, and Mangum, grabbed Plaintiff’s arms, threw him against a wall, and
patted him down. Plaintiff did not resist this pat-down search. [Id. at ¶ 7].
Defendants Trivette, Poole, and Mangum, with other officers, then led
Plaintiff to the shower, where Defendant Mangum stripped search Plaintiff.
[Id. at ¶ 8]. Defendant Trivette then handcuffed Plaintiff and ordered him to
sit on his bed while the other officers, including Defendants Poole and
Mangum, searched Plaintiff’s locker. Plaintiff submitted to handcuffs without
any resistance and sat on his bed during the search. Plaintiff did not become
irate, argue with, or curse at Defendant Trivette at any time. [Id. at ¶ 9].
At around 9:00 a.m., Defendants Trivette, Poole, and Mangum, led
Plaintiff to the back hallway behind Defendant Setser’s office where
Defendant Setser was waiting. [Id. at ¶ 10]. Defendant Poole warned
Plaintiff that, if he moved, Plaintiff’s arms would be broken. [Id.]. At no point
while being escorted to or in the back hallway did Plaintiff jerk away from,
argue with, or offer any resistance. [Id.]. Despite Plaintiff’s complete
compliance, Defendant Setser said, “Put his fucking ass on the floor.” [Id. at
¶ 11]. Defendants Trivette and Poole then slammed Plaintiff headfirst onto
the floor, knocking Plaintiff unconscious on impact. [Id. at ¶ 12]. When
Plaintiff regained consciousness, he was on the floor. Defendant Poole was
on Plaintiff’s left side and Defendant Mangum was on his right. Defendant
Setser had mounted Plaintiff’s back and pinned his knee below Plaintiff’s
neck. Holding a mace can on the bridge of Plaintiff’s nose, Defendant Setser
pulled Plaintiff’s head back, breaking Plaintiff’s nose. [Id. at ¶ 13]. Defendant
Mangum then punched Plaintiff on his right temple, knocking Plaintiff
unconscious again. When Plaintiff regained consciousness, Defendants
Poole and Mangum were dragging Plaintiff down the sidewalk to a gate.3 [Id.
at ¶¶ 14-15].
At approximately 10:05 a.m., Nurse Candy Stiles evaluated Plaintiff’s
injuries in response to Plaintiff declaring a medical emergency. Before Nurse
Stiles came to see the Plaintiff, she was told that the use of force was not
related to Plaintiff’s medical emergency. Plaintiff told Nurse Stiles about the
details of the incident, his broken nose, a knot on his head, and his other
injuries. After Nurse Stiles established that Plaintiff needed outside
emergency room care, she was told that there had been a use of force in
connection with Plaintiff’s medical emergency. [Id. at ¶ 17]. At around 3:18
p.m., Plaintiff was transported to the emergency room at UNC Health Blue
Ridge – Morganton, where medical personnel took x-rays and CT scans of
Plaintiff’s head, face, and left shoulder. [Id. at ¶ 18]. As a result of the use
of force, Plaintiff suffered a broken nose and head and shoulder trauma.
Plaintiff did not sustain any injuries the day of the incident before Defendants’
use of force on him. It is noted that Defendants’ forecast of evidence
includes the statement that two reliable “confidential informants,” who
3 Defendants’ forecast of evidence of this incident almost entirely contradicts Plaintiff’s
version. For summary judgment, however, the Court must take Plaintiff’s forecast as true
in accord with Rule 56, and thus determines that this difference in evidence creates a
genuine issue of fact for trial.
refused to write written statements, told Misty Crawford that Plaintiff was in
an altercation with another inmate “out on the yard” earlier that day, which
caused Plaintiff’s nose to bleed. [Doc. 28-3 at ¶ 7].4 After the use of force,
Plaintiff made multiple sick call appointments to report severe pain from his
nose, head, and shoulder injuries. About a month later, Plaintiff underwent
surgery to repair his broken nose. [Id. at ¶ 19; Doc. 34-5 at 1].
As a result of the incident, Plaintiff was charged with three disciplinary
offenses, including threatening to harm or injure staff (B18), use of profanity
toward staff (B24), and disobeying an order (B25). [Doc. 28-4 at 13]. Plaintiff
pleaded not guilty to these charges, but he was found guilty after a hearing.
[Id. at 3]. Plaintiff was released from custody on June 24, 2020.5 [Doc. 28-
3 at 7].
There is no video evidence before the Court. Defendants’ forecast of
evidence includes an Incident Report related to the “unanticipated use of
force,” which states that there was “[n]o camera footage available for
archiving purposes due to the location at FMCU.” [Doc. 28-3 at 3].
4 On summary judgment, of course, the Court can only consider admissible evidence,
and Defendant do not cite to any hearsay exception that may allow this testimony.
5 The Court takes judicial notice that Plaintiff is again in NCDPS custody and is now
housed at Lumberton Correctional Institution in Lumberton, North Carolina.
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).
Here, the forecast of evidence in the light most favorable to Plaintiff
shows that Defendants Setser, Trivette, Poole, and Mangum assaulted
Plaintiff in a hallway at FMCU where no cameras were present when Plaintiff
was handcuffed, offering no resistance, and complying with orders. From this
forecast of evidence, a reasonable jury could conclude that Defendants
applied force maliciously and sadistically for the purpose of causing harm
and not to restore order by compelling compliance with prison rules. The
Court, therefore, will deny Defendants’ motion for summary judgment and
leave the determination of whether these Defendants used excessive force
to the jury.
B. Qualified Immunity
Defendants also claim 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).
Defendants argue that they are entitled to qualified immunity because
no constitutional violation occurred.6 [Doc. 27 at 11]. Because the jury must
decide whether the Defendants actions violated Plaintiff’s constitutional
6 Defendants also claim, without support or argument, that even if Plaintiff’s rights were
violated, “such rights were not clearly established at the time of Defendants’ actions.”
[Doc. 27 at 11]. The Court declines to further address this plainly incorrect and
unsupported assertion.
rights, the Court concludes that qualified immunity does not bar Plaintiff’s
claim against the Defendants. The Court, therefore, will deny Defendants’
summary judgment motion on this ground as well.
V. PLAINTIFF’S MOTION TO WITHDRAW AS COUNSEL
Plaintiff’s attorney, Locke G. Ho, moves the Court to allow him to
withdraw as Plaintiff’s counsel of record. [Doc. 37]. As grounds, Mr. Ho
states that he is leaving employment with his law firm and that, on June 5,
2023, he will begin a judicial clerkship with the United States District Court
for the Eastern District of Michigan. As such, Mr. Ho states he will be unable
to engage in the practice of law or represent clients. [Id. at 2]. For good cause
shown and because Plaintiff’s other attorney, William Walker, continues to
represent Plaintiff, the Court will grant this motion and allow Mr. Ho to
withdraw as counsel for Plaintiff.
VI. CONCLUSION
For the reasons stated herein, the Court will deny Defendants’ motion
for summary judgment.
O R D E R
IT IS, THEREFORE, ORDERED that the Defendants’ Motion for
Summary Judgment [Doc. 26] is DENIED.
IT IS FURTHER ORDERED that Plaintiffs Motion to Withdraw as
Counsel [Doc. 37] is GRANTED in accordance with the terms of this Order.
The Clerk is respectfully instructed to update the docket in this matter
to reflect the true full names of B. Setser as Bennett Setser, Ill, and B.
Trivette as Brandon Trivette.
IT IS SO ORDERED.
Signed: May 29, 2023
Martifi Reidinger ee
Chief United States District Judge AS
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