Opinion

Whitener v. The Rutherford County Detention Center

Court: District Court, W.D. North Carolina
Filed: Sep 1, 2023
Cited by: 0 cases
Authority: More cited than 24.9%

applying prisoner mailbox rule to § 1983 case

How later courts described this case

applying prisoner mailbox rule to § 1983 case
concluding that claims derivative of excessive force claim were mooted by jury’s verdict finding no excessive force
courts must account for the government’s legitimate interests in managing the facility, “appropriately deferring to policies and practices that in th[e] judgment of jail officials are needed to preserve internal order and discipline and to maintain institutional security”
“A reasonable law enforcement officer, as a non-medical professional, cannot be expected to question the judgment of a qualified medical professional absent some extraordinary circumstance.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:21-cv-00048-MR

RONNIE DALE WHITENER, )

)

Plaintiff, ) REDACTED

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

RUTHERFORD COUNTY DETENTION )

CENTER, et al., )

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on:

1. Defendants John Cooley and Joshua Goodwin’s Motion for

Summary Judgment [Doc. 58];

2. Defendant John Patterson’s Motion for Summary Judgment

[Doc. 60];

3. Plaintiff Ronnie Dale Whitener’s Motion for Partial Summary

Judgment [Doc. 61];

4. Plaintiff’s Motions to Revive Defendants [Docs. 63, 81];

5. Defendants Cooley and Goodwin’s Motion to Strike Surreply

[Doc. 75];

6. Defendant John Patterson’s Motion to Strike Surreply [Doc. 77];

and

7. Plaintiff’s “Motion to Remove Detainer for the Purpose of

Pursuing Medical Treatment and for Other Relief the Court Can

Provide Plaintiff Concerning Matters Related to this Case” [Doc.

83].

I. BACKGROUND

The Plaintiff Ronnie Dale Whitener, who is presently incarcerated in

the Tennessee Department of Corrections, filed this pro se action under 42

U.S.C. § 1983 and North Carolina law, addressing incidents that allegedly

occurred while he was a pretrial detainee at the Rutherford County Detention

Center (“RCDC”) in Rutherford County, North Carolina. The Plaintiff seeks

a declaratory judgment, compensatory and punitive damages, a jury trial, the

costs of this action, and any other relief the Court deems just and proper.

[Doc. 1: Complaint at 20-21]. The Plaintiff’s verified Complaint passed initial

review on claims against Defendants Sergeant John Patterson (“Sergeant

Patterson”), Officer John Cooley (“Officer Cooley”), and Officer Joshua

Goodwin (“Officer Goodwin”)1 for the imposition of unwanted medical

1 These Defendants were referred to as “‘John Doe’ RCDC Sargent” and “ John Doe’

RCDC officer[s]” in the Complaint. [Doc. 1: Complaint at 1].

treatment in violation of due process, the use of excessive force and failure

to intervene, and retaliation. [Id.; Doc. 16: Order on Initial Review at 10-14].

The Court exercised supplemental jurisdiction over the Plaintiff’s claims of

assault and battery and negligence under North Carolina law. [Id. at 16-19].

The Court granted the Plaintiff 30 days to amend his Complaint to correct

the deficiencies identified in the Order on initial review or to otherwise

properly state a claim upon which relief can be granted. [Id. at 23]. It

cautioned the Plaintiff that “[p]iecemeal amendment will not be permitted”

and, “[s]hould the Plaintiff fail to timely amend his Complaint … the matter

will proceed only against” Defendants Patterson, Cooley, and Goodwin on

the claims identified in the Order on initial review. [Id. at 24]. The Plaintiff

failed to amend the Complaint, and the Defendants were served. [Doc. 35:

Executed Summonses].

On July 5, 2022, the Court entered a Pretrial Order and Case

Management Plan that set the deadline to amend and join parties as August

18, 2022; the discovery cutoff date as October 27, 2022; and the deadline to

file dispositive motions as November 28, 2022. [Doc. 46: Pretrial Order and

Case Mgmt. Plan].

In September 2022, after the deadline to amend and add parties had

expired the Plaintiff filed Motions seeking leave to amend and for an

extension of time to do so,. [Docs. 48, 51: Motions]. On November 14, 2022,

the Court denied the Motions as futile. [Doc. 57: Order].

On November 25, 2022 and February 23, 2023,2 the Plaintiff filed

Motions to “revive” claims against several Defendants that had failed to pass

initial review of the Complaint. [Docs. 63, 81: Motions to Revive Defts.]. On

February 28, 2023, the Plaintiff filed a “Motion to Remove Detainer…” in

which he asks for the Rutherford County detainer to be removed because it

has increased his security level in the Tennessee Department of Corrections

such that he is unable to obtain medical treatment during his current

incarceration in Tennessee. [Doc. 83: Motion to Remove Detainer]. The

Defendants have not responded to these Motions, and the time to do so has

expired.

The parties have also filed cross-Motions for Summary Judgment.

[Doc. 58: Cooley/Goodwin MSJ; Doc. 60: Patterson MSJ; Doc. 61: Plaintiff’s

Partial MSJ.]. Thereafter, the Court entered an Order in accordance with

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising the Plaintiff of

2 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 § 1983 case).

the requirements for filing a response to the summary judgment motions and

of the manner in which evidence could be submitted to the Court. [Doc. 65:

Roseboro Order]. The parties filed Responses and supporting materials

[Doc. 67: Plaintiff’s Patterson Response; Doc. 68: Plaintiff’s Cooley/Goodwin

Response; Doc. 66: Patterson’s Response] and Replies [Doc. 69:

Cooley/Goodwin Reply; Doc. 70: Patterson Reply; Doc. 71: Plaintiff’s Reply].

The Plaintiff then filed Surreplies [Docs. 73, 74: Plaintiff’s Surreplies] which

the Defendants have moved to strike [Doc. 75: Cooley/Goodwin Motion to

Strike: Doc. 77: Patterson Motion to Strike; see Doc. 78: Plaintiff’s

Response]. Having been fully briefed, these matters are ripe for disposition.

II. SUMMARY JUDGMENT 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. 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

(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.

In 2016, prior to his incarceration at RCDC, the Plaintiff suffered a

fracture in his lower back. [Doc. 1-3: Complaint Ex at 4 (March 17, 2017

Progress Note)]. About a year later, he was found to have “progressive

kyphotic deformity in his lower back and upper back” and severe lower back

pain. [Doc. 1-3: Complaint Ex at 4 (March 17, 2017 Progress Note)]. In

December 2017, he was diagnosed with “evidence of severe kyphotic

deformity with positive saggital balance and a focal kyphosis of

approximately 30º at L2 [and] … some degree of coronal scoliosis” that was

only correctible through surgery. [Doc. 1-3: Complaint Ex at 1 (Dec. 14, 2017

Progress Note)]. The Plaintiff did not receive surgery for this condition. [Doc.

1: Complaint at 16].

The Plaintiff entered RCDC as a pretrial detainee in May 2019. [Doc.

1: Complaint at 5]. On May 18, 2019, the Plaintiff requested medical

attention for lower back pain. [Id.]. At around 3:30 p.m., the Plaintiff yelled

for Officer Cooley to come over during supervision rounds. [Doc. 59-2:

Cooley Decl. at ¶ 2]. Cooley called for the cell door to be opened and

stepped inside. [Id.]. The Plaintiff was doubled over, and said that he was

having trouble breathing and that his back hurt. [Id.]. Cooley immediately

contacted Officer Goodwin and asked him to inform Sergeant Patterson what

was happening. [Id. at ¶ 3; Doc. 59-1: Goodwin Decl. at ¶ 3]. Officer

Goodwin contacted Sergeant Patterson for advice; Patterson suggested that

the officers check the Plaintiff’s vitals. [Doc. 59-1: Goodwin Decl. at ¶ 3].

Officer Goodwin came back a few minutes later with a “nurse on a

stick,” which consisted of a thermometer and a blood pressure monitor, to

take the Plaintiff’s vitals pursuant to the jail nurse’s instruction. [Id.]. Despite

several attempts, the officers were unable to obtain Plaintiff’s vitals because

of his “continuous movements.” [Doc. 59-2: Cooley Decl. at ¶ 4]. Officer

Cooley contacted Sergeant Patterson to let him know they could not get the

Plaintiff’s blood pressure reading. [Id.].

Sergeant Patterson and Medical Technician Hannon (“Med Tech

Hannon”)3 came to the Plaintiff’s cell several minutes later to obtain his vitals.

[Id. at ¶ 5]. The Plaintiff was balled up on the floor, complaining that his

“stomach had a hole in it, and that his spine was hurting and that he couldn’t

get up or lay flat on his bunk.” [Doc. 60-4: Patterson MSJ Ex at 4 (RCSO

Use of Force Report)]. Med Tech Hannon was unable to obtain a blood

pressure reading despite several attempts. [Id.; Doc. 59-2: Cooley Decl. at

¶ 5; Doc. 59-1: Goodwin Decl. at ¶ 3]. Med Tech Hannon returned to the

nurse’s station to contact the nurse. [Doc. 59-2: Cooley Decl. at ¶ 5]. Officer

Goodwin returned to his station on the first floor. [Doc. 59-1: Goodwin Decl.

at ¶ 4].

3 Medical Technician Hannon is not a defendant in this case. [See Doc. 1: Complaint;

Doc. 16: Order on Initial Review at 7-10].

Med Tech Hannon returned to the cell and advised Sergeant Patterson

that the nurse said to give the Plaintiff some “ibu meds,” place the Plaintiff

on a liquid diet, and have a camera in his cell so that his health could be

monitored more closely.4 [Doc. 59-2: Cooley Decl. at ¶ 6; Doc. 60-4:

Patterson MSJ Ex at 4 (RCSO Use of Force Report)]. The Plaintiff told Med

Tech Hannon5 his “medical condition and his need of medical treatment,”

and he told Sergeant Patterson that he disagreed with this diagnosis and

treatment plan because it had nothing to do with his back pain.” [Doc. 1:

Complaint at 6]. The Plaintiff asked to be sent to the emergency room for a

second opinion “due to the pain and the seriousness of his medical

conditions and need of medical treatment,” or to be left alone. [Id.]. The

Plaintiff told Sergeant Patterson that he was not moving to a lockdown cell

or getting up from his cell floor, and that they “would have to spray and/or

tase him.” [Doc. 59-2: Cooley Decl. at ¶ 7; Doc. 60-4: Patterson MSJ Ex at

4 (RCSO Use of Force Report)]. Sergeant Patterson told the Plaintiff that he

could not refuse the treatment that medical staff had ordered, and he warned

4 The Plaintiff alleges “[u]pon information and belief” that the nurse practitioner consulted

with a physician who diagnosed the Plaintiff with stomach cramps and prescribed him

Tylenol, a liquid diet, and 10 days in segregation for observation. [Doc. 1: Complaint at

6].

5 “Nurse Practitioner ‘Jane Doe’” in the Complaint. [Doc. 1: Complaint at 6].

the Plaintiff that he needed to comply. [Doc. 1: Complaint at 6; Doc. 59-2:

Cooley Decl. at ¶ 7].

Sergeant Patterson and Officer Cooley6 tried to forcibly lift the Plaintiff

into a wheelchair, which intensified the Plaintiff’s pain; the Plaintiff moaned

in pain and the officers put him back down. [Doc. 1: Complaint at 7].

The Plaintiff repeated his request to go to the emergency room for a

second opinion. [Id.]. Sergeant Patterson warned the Plaintiff again, then

sprayed pepper spray in his face because the Plaintiff “denied medical staff’s

ordered treatment and would not get into the wheelchair to be taken to

segregation for observation.” [Id.; Doc. 59-2: Cooley Decl. at ¶ 8; Doc. 59-

5: Plaintiff’s Interrog. Resp. at 3 (admitting that Officer Cooley told the

Plaintiff to “get into the wheelchair;” “you’re going to do as asked and told”)].

The officers grabbed the Plaintiff’s legs and armpits to drag him out of the

6 The Plaintiff’s Verified Complaint states that there were two officers—“Officers ‘John

Doe’ and ‘John Doe’”—who were present at this incident; however, he later refers to one

of these officers as “Sargent [sic] John Doe.” [See Doc. 1: Complaint at 7, 8]. In his

responses to interrogatories, the Plaintiff identified the two officers at the scene as Officer

Goodwin and Officer Cooley. [Doc. 59-5: Interrog. Resp. at 2 (responses 2 and 3)].

Officer Goodwin, however, stated in his Declaration that he was not present at the

Plaintiff’s cell when the Plaintiff was lifted into the wheelchair. [See Doc. 59-1: Goodwin

Decl. at ¶ 4]. The Plaintiff does not appear to dispute this, and now asserts in his summary

judgment response that it was Sergeant Patterson who sprayed him. [Doc. 67 at 4-5, ¶¶

15-16].

cell; the Plaintiff “brace[d] his legs up against the door jams of the cell,” and

Patterson pepper sprayed him again.7 [Doc. 1: Complaint at 8].

The two officers placed the Plaintiff in a wheelchair and began

wheeling him toward segregation. [Id.]. As the wheelchair passed the pod’s

stairway, the Plaintiff “reach[ed] out at the post of a staircase inside the pod

and pull[ed] himself out of the wheelchair onto the floor where he latch[ed]

his arms around the bottom of the post.” [Id.; Doc. 59-2: Cooley Decl. at ¶

8]. Officer Cooley told the Plaintiff to “let go of the pole.” [Doc. 59-5: Plaintiff’s

Interrog. Resp. at 3]. The Plaintiff again asked Sergeant Patterson to allow

him to either go to the emergency room, or to refuse the medical orders.

[Doc. 1: Complaint at 8]. Sergeant Patterson sprayed the Plaintiff’s face with

pepper spray for several seconds while Officers Goodwin and Cooley pulled

his legs in an attempt to remove him from the post; they did not succeed.

[Id.; Doc. 59-2: Cooley Decl. at ¶ 9]. Sergeant Patterson then “physically

kicked [the Plaintiff] and plac[ed] his booted foot on the Plaintiff’s head, neck,

and upper back.” [Doc. 1: Complaint at 9]. Sergeant Patterson called on the

7 According to the Defendants, Sergeant Patterson and Officer Cooley “helped” the

Plaintiff into the wheelchair; they do not mention a second application of pepper spray in

the cell. [Doc. 59-2: Cooley Decl. at ¶ 8].

radio for staff to bring a taser, which Officer Goodwin brought a few minutes

later.8 [Doc. 59-2: Cooley Decl. at ¶ 9; Doc. 59-1: Goodwin Decl. at ¶ 5].

The Plaintiff was told to comply or he would be tased. When the Plaintiff

continued to refuse, Sergeant Patterson tased him.9 [Doc. 59-2: Cooley

Decl. at ¶ 9; Doc. 59-1: Goodwin Decl. at ¶¶ 6-7]. The Plaintiff released the

post and he was taken to a segregation cell.10 [Doc. 1: Complaint at 9; Doc.

59-2: Cooley Decl. at ¶ 10; Doc. 59-1: Goodwin Decl. at ¶ 8].

The Defendants’ actions “increased [Plaintiff’s] pain and caused [him]

emotional stress…” [Doc. 1: Complaint at 17]. The Plaintiff had no apparent

injury after the incident, and he refused treatment. [Doc. 60-4: Patterson MSJ

Ex at 3 (RCSO Use of Force Report)]. The Plaintiff was observed walking

around his cell, standing up, and taking a shower about 10 minutes after he

was placed in the observation cell. [Doc. 60-4: Patterson MSJ Ex at 4

(RCSO Use of Force Report)].

8 Officer Goodwin explains that he returned with the taser about 30 minutes after having

left the Plaintiff’s cell and resuming his regular station. [Doc. 59-1: Goodwin Decl. at ¶ 5].

9 According to the Plaintiff, Sergeant Patterson tased him without any warning. [Doc. 1:

Complaint at 9]. The Court is not required to accept the Plaintiff’s contention that he

received no warning in light of the objective video evidence submitted by the Defendants,

which depicts Sergeant Patterson calling for the taser while standing a very short distance

from the Plaintiff. See Scott, 550 U.S. at 380. This demonstrates conclusively that the

Plaintiff was, at the very least, aware that Patterson had called for a taser. As such, he

had notice that a taser was going be deployed.

10 According to the Plaintiff, he was “drug by his legs” into the observation cell. [Doc. 1:

Complaint at 9].

According to the Plaintiff, the Defendants “intentionally den[ied] Plaintiff

request for a second opinion” and used “unnecessary and excessive” force

as “a form of retaliation” to punish the Plaintiff for rejecting medical orders,

and for asking to go to the emergency room or to be left alone. [Doc. 1:

Complaint at 16-19].

On June 29, 2019, an investigation of the Plaintiff’s use of force

complaint concluded as follows:

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxx

[Doc. 62: Plaintiff’s MSJ Ex at 6-7].

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxx in March 2019. [Id. at 8]. On July 12, 2019,

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xxxxx [Id. at 9].

The parties have submitted a video file containing footage from the

housing pod that shows the following events:11

3:47:46 Partial view of a wheelchair and an officer moving outside of a

cell; Plaintiff is placed in the wheelchair and is wheeled through

the pod by Sergeant Patterson and Officer Cooley.

3:47:53 As the Plaintiff is wheeled by the stairway, the Plaintiff lunges for

the stairway handrail, grabs it, flings himself out of the wheelchair

and onto the ground, and grabs onto a stairway post.

3:48:02 The Plaintiff struggles against Sergeant Patterson and Officer

Cooley’s attempts to lift him from the ground.

11 The Plaintiff requested the video’s submission; the Court instructed the Defendants to

provide courtesy copies of the video to the Court and to the Plaintiff in light of the Plaintiff’s

incarcerated status. [See Doc. 72: Plaintiff’s “Motion for Instructions;” Doc. 79: Order;

Doc. 80: Notice of Conventional Filing].

3:48:37 Sergeant Patterson appears to kick to the Plaintiff’s torso;

Patterson and Officer Cooley attempt to pull the Plaintiff from the

post.

3:49:14 Sergeant Patterson speaks into his radio while standing a short

distance from the Plaintiff.

3:50:20 Officer Goodwin arrives, and hands Patterson a taser.

3:50:45 All three officers attempt to remove the Plaintiff from the post.

3:50:51 Sergeant Patterson administers the taser.

3:50:56 The Plaintiff is removed from the stairway post and is carried

away.

IV. DISCUSSION

A. Pending Motions

Before addressing the parties’ Motions for Summary Judgment, the

Court will first address the parties’ outstanding motions.

1. Motions to Revive Defendants

In his November 25, 2022 and February 20, 2023 Motions to Revive

Defendants, the Plaintiff asks the Court to allow him to assert claims against

RCDC, Sheriff Francis, Med Tech Hannon, and “others … in the control

center” because discovery materials support claims for supervisory liability,

deliberate indifference to a serious medical need, and failure to intervene.

[Docs. 63, 81: Motions to Revive Defts.].

The Plaintiff filed his first Motion to Revive at the same time he filed

his Motion for Partial Summary Judgment, just three days before the

deadline to file dispositive motions expired, and it was docketed after the

Defendants filed their Motions for Summary Judgment. The second Motion

to Revive was filed nearly three months after the parties filed their Motions

for Summary Judgment.

The Plaintiff had repeated opportunities to properly file a timely

superseding Amended Complaint but failed to do so. He again attempts to

amend in a piecemeal fashion without submitting a proposed Amended

Complaint. [See Docs. 16, 57: Orders]. He has also failed to adequately

justify amending at this late juncture. His Motions to Revive are, therefore,

denied.

2. Motions to Strike Surreply

The Defendants have filed Motions to Strike [Docs. 75, 77] because

the Plaintiff’s Surreplies [Docs. 73, 74] are not permitted under the Court’s

Local Civil Rules. The Plaintiff argues that his Surreply to Defendant

Patterson’s Reply should be accepted because he filed it to address

Defendant Patterson’s “blatant mischaracterizations and misstatements of

facts….” [Doc. 78: Plaintiff’s Resp. at 1].

Surreplies “are neither anticipated nor allowed” by the Court’s Local

Civil Rules, “but leave of Court may be sought to file a surreply when

warranted.” LCvR 7.1(e). “Generally, courts allow a party to file a surreply

only when fairness dictates based on new arguments raised in the previous

reply.” DiPaulo v. Potter, 733 F.Supp.2d 666, 670 (M.D.N.C. 2010); see,

e.g., Johnson v. Allen, 416 F.Supp.3d 550, 564 (E.D.N.C. 2018) (finding that

leave to file a surreply was not warranted where the court did not rely on new

material raised in the reply to reach its decision).

The Court finds that fairness does not dictate that the Plaintiff be

permitted to file Surreplies. The Defendants did not raise any new

arguments in their Replies, and the Court is more than capable of discerning

the positions of the parties from the briefs that have already been filed. The

Defendants’ Motions to Strike will, therefore, be granted.12

3. Motion to Remove Detainer

The Plaintiff also asks the Court to remove a Rutherford County

detainer so that he may obtain medical care during his incarceration in the

Tennessee Department of Corrections. [Doc. 83: Motion to Remove

Detainer]. “[W]hen a state prisoner is challenging the very fact or duration of

12 Even if the Court were to consider the Plaintiff’s Surreplies, they would not alter the

outcome of the case.

his physical imprisonment, and the relief he seeks is a determination that he

is entitled to immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser

v. Rodriguez, 411 U.S. 475, 500 (1973); see generally 28 U.S.C. § 2241;

Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489 (1973).13 The

removal or alteration of a detainer is not cognizable in this § 1983 action, and

therefore, the Plaintiff’s motion is denied.

B. Plaintiff’s Motion for Partial Summary Judgment

The Plaintiff seeks summary judgment against Sergeant Patterson for

his claims regarding the use of excessive force, retaliation, assault and

battery, and negligence.14 For grounds, the Plaintiff argues that

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13 The Court makes no determinations about the potential merit or procedural viability of

such an action.

14 The Plaintiff does not seek summary judgment on the due process claim for unwanted

medical care, or for failure to intervene. [Doc. 61: Plaintiff’s MSJ at 2].

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx [Doc. 61: Plaintiff’s MSJ].

The Plaintiff has failed to demonstrate the existence of a genuine

dispute of material fact as to his excessive force and retaliation claims. A

policy violation does not rise to the level of a § 1983 claim absent a plausible

allegation of an underlying constitutional violation. See generally Jackson v.

Sampson, 536 F. App’x 356, 357 (4th Cir. 2013) (unpublished) (holding that

“prison officials’ failure to follow internal prison policies are not actionable

under § 1983 unless the alleged breach of policy rises to the level of

constitutional violation”).

Here,

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The Plaintiff’s reliance on

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also unavailing. The Federal Rules of Evidence bar parties from introducing

evidence of any prior bad act “to prove a person's character in order to show

that on a particular occasion the person acted in accordance with the

character.” Fed. R. Evid. 404(b)(1). Thus, ‘[w]hile parties may dig into a

witness’s prior acts for the purpose of establishing his character for

truthfulness or untruthfulness,” it is improper to use a witness’s prior conduct

to draw an inference that he acted improperly on another occasion.

McMichael v. James Island Charter Sch., 840 F. App’x 723, 732 (4th Cir.

2020) (citing Fed. R. Evid. 608(b)). The Plaintiff’s argument that Sergeant

Patterson used excessive force in conformity with

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx is a “textbook

example of inadmissible ‘other acts’ evidence” that the Federal Rules of

Evidence prohibit. Id.; see Md. Highways Contractors Ass’n v. Md., 933 F.2d

1246, 1251 (4th Cir. 1991) (“evidence, which is inadmissible at trial, cannot

be considered on a motion for summary judgment”). The forecast of

evidence demonstrates that Sergeant Patterson’s use of force was not

objectively unreasonable. See Sections (b)(ii), (iv), infra. Moreover, the

Plaintiff’s retaliation claim is conclusory, and it is not supported by the

forecast of evidence. See Section (b)(iii), (iv), infra. Further, the Plaintiff has

not demonstrated that he should be granted summary judgment on his North

Carolina assault and battery and negligence claims. See Section (b)(v),

infra. The Plaintiff’s Motion for Partial Summary Judgment is, therefore,

denied.

C. Defendants’ Motions for Summary Judgment

1. Due Process

The Plaintiff asserts due process claims against Sergeant Patterson,

Officer Cooley, and Officer Goodwin for forcing him to undergo unwanted

medical treatment.

The Fourteenth Amendment’s Due Process Clause provides that no

person shall be deprived of “life, liberty, or property, without due process of

law.” U.S. Const. Amend XIV. The first inquiry in any due process challenge

is whether the plaintiff has been deprived of a protected interest in property

or liberty that was accomplished by state action. Tigrett v. The Rector and

Visitors of the Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002); Stone v. Univ.

of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988).

“[A] competent person has a constitutionally protected liberty interest

in refusing unwanted medical treatment.” Cruzan v. Dir., Mo. Dep’t of Health,

497 U.S. 261, 278 (1990). This liberty interest survives conviction and

incarceration. King v. Rubenstein, 825 F.3d 206, 222 (4th Cir. 2016); see

Washington v. Harper, 494 U.S. 210, 221–22 (1990) (recognizing an

individual’s “significant liberty interest in avoiding the unwanted

administration” of a specific form of medical treatment); Hogan v. Carter, 85

F.3d 1113, 1116 (4th Cir. 1996) (en banc) (citing Harper, 494 U.S. 221–22).

In this context, prison officials may override this right when treatment is

“reasonably related to legitimate penological interests.” Harper, 494 U.S. at

223 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). “This is true even when

the constitutional right claimed to have been infringed is fundamental, and

the State under other circumstances would have been required to satisfy a

more rigorous standard of review.” Id. (citation omitted).

Here, the forecast of evidence demonstrates that the Plaintiff

complained of difficulty breathing, back pain, and stomach pain; that several

attempts to obtain Plaintiff’s vitals were unsuccessful; that medical staff

instructed that a camera be placed in the Plaintiff’s cell, that he receive

medication, and that he be placed on a liquid diet; and that the Defendants

moved the Plaintiff to an observation cell pursuant to medical staff’s

instruction. [See Doc. 59-2: Cooley Decl. at ¶ 6; Doc. 60-4: Patterson MSJ

Ex at 4 (RCSO Use of Force Report)]. The simple act of moving the Plaintiff

to an observation cell so that medical staff could more easily observe the

Plaintiff does not qualify as a forced medical procedure. See Morris v.

Pompeo, __ F.Supp.3d __, 2020 WL 6875208 (D. Nev. Nov. 23, 2020) (“no

forced medical procedure [was] at issue” where the State Department

required a doctor’s certificate of gender to support a passport application).

Even if the cell transfer could be considered unwanted medical

treatment, the Defendants were merely carrying out medical staff’s

instructions. See Anglin v. City of Aspen, 562 F.Supp.2d 1304, 1318 (D. Col.

May 1, 2008) (“A reasonable law enforcement officer, as a non-medical

professional, cannot be expected to question the judgment of a qualified

medical professional absent some extraordinary circumstance.”). Requiring

the Plaintiff to move to an observation cell pursuant to medical staff’s

instruction was rationally related to the RCDC’s legitimate interests. See

generally Harper, 494 U.S. at 223; Turner, 482 U.S. at 89-90; see also

Sullivan v. Bornemann, 384 F.3d 372 (7th Cir. 2004) (finding no constitutional

violation where police officers helped restrain an arrestee for a

catheterization procedure at the request of a nurse; the state’s substantial

interest in assuring the arrestee’s medical stability outweighed his right to

refuse the unwanted medical treatment). The Plaintiff has failed to present

a forecast of evidence from which a reasonable jury could find that any of

the Defendants violated the Plaintiff’s due process rights with regard to

receiving unwanted medical treatment. Accordingly, the Defendants’

Motions for Summary Judgment on this claim are granted.

2. Excessive Force

The Plaintiff claims that Sergeant Patterson used excessive force

during the incident; that Officers Cooley and Goodwin failed to intervene; and

that the Defendants’ actions were intended as punishment. [Doc. 1:

Complaint at 16-19].

The Fourteenth Amendment “protects a pretrial detainee from the use

of excessive force that amounts to punishment.” Graham v. Connor, 490

U.S. 386, 395 n.10 (1989). To state an excessive force claim, a pretrial

detainee must show only that the force “purposely or knowingly used against

him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389

(2015). The standard for assessing a pretrial detainee’s excessive force

claim is “solely an objective one.” Id. This inquiry “requires careful attention

to the facts and circumstances of each particular case.” Graham, 490 U.S.

at 396. Those circumstances include “the relationship between the need for

the use of force and the amount of force used; the extent of the plaintiff ’s

injury; any effort made by the officer to temper or to limit the amount of force;

the severity of the security problem at issue; the threat reasonably perceived

by the officer; and whether the plaintiff was actively resisting.” Kingsley, 576

U.S. at 397. In determining whether the force was objectively unreasonable,

a court considers the evidence “from the perspective of a reasonable officer

on the scene, including what the officer knew at the time, not with the 20/20

vision of hindsight.” Id. (citing Graham, 490 U.S. at 396).

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., 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.”

Randall, 302 F.3d at 204.

The undisputed forecast of evidence, including the jail video footage,

demonstrates that the Defendant officers used physical force only after the

Plaintiff verbally and physically resisted their repeated commands to comply

with medical staff’s orders. [Doc. 59-5: Interrog. Resp. at 2 (responses 2 and

3) (officers “made physical contact [with the Plaintiff] after [Plaintiff] refused

medical….”)]. The Defendants were only able to remove the Plaintiff from

the cell and place him into a wheelchair by using hands-on force and pepper

spray. Outside the cell, the Plaintiff flung himself out of the wheelchair and

clung to a stairway post despite officers’ repeated verbal and physical efforts

to remove him. The Plaintiff’s refusal and resistance continued until

Sergeant Patterson stunned the Plaintiff with a taser. While the Plaintiff

claims that he experienced pain during the incident, the forecast of evidence

demonstrates that the Plaintiff sustained no physical injuries, that he refused

medical treatment following the incident, and that he was seen walking

around and showering about ten minutes after the incident. [Doc. 60-4:

Patterson MSJ Ex at 4 (RCSO Use of Force Report)]. It was objectively

reasonable for the Defendants to enforce the Plaintiff’s compliance with

medical staff’s order for camera observation, and to respond to his repeated

verbal refusal and physical resistance with appropriate force. See Sullivan,

384 F.3d 377 (police officers did not use excessive force in violation of the

Fourth Amendment by helping to restrain an arrestee for catheterization)

Grayson, 195 F.3d at 697 (detention center officers did not use excessive

force by pepper spraying him and using a five-man extraction team where

such was necessitated by the detainee’s belligerent behavior). It was also

reasonable for the Defendants to use force in response to the Plaintiff’s

resistance at the pod’s stairway. See Kingsley, 576 U.S. at 400 (courts must

account for the government’s legitimate interests in managing the facility,

“appropriately deferring to policies and practices that in th[e] judgment of jail

officials are needed to preserve internal order and discipline and to maintain

institutional security”) (internal quotations omitted).

As the use of force was objectively reasonable, the Plaintiff’s claims for

failure to intervene necessarily fail. See Hinkle v. City of Clarksburg, W.Va.,

81 F.3d 416, 420-21 (4th Cir. 1996) (concluding that claims derivative of

excessive force claim were mooted by jury’s verdict finding no excessive

force). The Defendants’ Motions for Summary Judgment are, therefore,

granted on the Plaintiff’s claims for the use of excessive force and failure to

intervene.

3. Retaliation

The Plaintiff claims that the Defendants’ actions were intended to

punish him, and were “a form of retaliation” for the Plaintiff’s rejection of

medical orders and his requests to either go to the emergency room or to be

left alone. [Doc. 1: Complaint at 16-19].

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)).

The same-decision test applies to determining the causation element

of a prisoner’s retaliation claim. Id. Once the prisoner-plaintiff shows that

his “protected conduct was a substantial motivating factor in a prison guard's

decision to take adverse action,” the burden then shifts to the defendant to

prove a permissible basis for taking that action. Id. at 300. 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.

Here, the forecast of evidence demonstrates that the Plaintiff refused

to comply with correctional staff’s orders before any physical force was used,

and that the amount of force that was applied increased as the level of his

resistance escalated. See Section (b)(ii), supra. The forecast of evidence

satisfies the same-decision test because it establishes that the Defendants’

use of force directly responded to the Plaintiff’s verbal and physical

resistance. Adams, 40 F.3d at 74; [see Doc. 59-5: Interrog. Resp. at 2]. The

Plaintiff has failed to forecast any evidence to the contrary. Accordingly, no

genuine dispute of material fact exists and the Defendants’ Motions for

Summary Judgment are granted on the Plaintiff’s retaliation claims.

4. 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 any 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 basis as well.

5. North Carolina Claims

On initial review, the Court exercised supplemental jurisdiction over the

Plaintiff’s North Carolina claims for assault and battery, and negligence.

[Doc. 16: Order on Initial Review at 16-20].

The Plaintiff’s North Carolina assault and battery claims are subsumed

within his federal excessive force claims and therefore are dismissed as well.

See generally Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994); see, e.g.,

Connor v. Thompson, 647 F. App’x 231 (4th Cir. 2016).

As to the Plaintiff’s negligence claims, there is no forecast of evidence

that Defendants Cooley and Goodwin’s actions were corrupt, malicious, or

outside and beyond the scope of their duties. See Shaw v. Stround, 13 F.3d

791, 803 (4th Cir. 1994) (“A public officer performing discretionary acts … is

absolutely immune from mere negligence claims) (citing Hare v. Butler, 99

N.C. App. 693, 394 S.E.2d 231 (1990)). Therefore, the negligence claims

as to Officers Cooley and Goodwin are dismissed based on public official

immunity. As to Sergeant Patterson, the Plaintiff has forecast evidence that

he violated RCDC policy, which calls into question whether he acted outside

the scope of his duties. Defendant Patterson’s Motion for Summary

Judgment on the Plaintiff’s negligence claim is, therefore, denied. However,

the Court declines to maintain supplemental jurisdiction over the Plaintiff’s

negligence against Defendant Patterson, as all of the federal claims have

been dismissed. 28 U.S.C. § 1367(c)(3). The Court will, therefore, dismiss

the Plaintiff’s negligence claim against Defendant Patterson without

prejudice to raising it in state court.

V. CONCLUSION

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

Motions for Summary Judgment and denies the Plaintiff’s Motion for Partial

Summary Judgment. This action is dismissed with prejudice except for the

negligence claim against Defendant Patterson, which is dismissed without

prejudice to raising it in state court.

ORDER

IT IS, THEREFORE, ORDERED that:

1. Defendants John Cooley and Joshua Goodwin’s Motion for

Summary Judgment [Doc. 58] is GRANTED.

2. Defendant John Patterson’s Motion for Summary Judgment

[Doc. 60] is GRANTED as described in this Order.

3. Plaintiff Ronnie Dale Whitener’s Motion for Partial Summary

Judgment [Doc. 61] is DENIED.

4. This action is DISMISSED WITH PREJUDICE except for the

Plaintiff’s negligence claim against Defendant Patterson, which

is DISMISSED WITHOUT PREJUDICE.

5. The Plaintiff’s Motions to Revive Defendants [Doc. 63, 81] are

DENIED.

6. The Defendants’ Motions to Strike Surreplies [Docs. 75, 77] are

GRANTED and the Plaintiff Surreplies [Docs. 73, 74] are

STRICKEN.

7. The Plaintiff’s “Motion to Remove Detainer for the Purpose of

Pursuing Medical Treatment and for Other Relief the Court Can

Provide Plaintiff Concerning Matters Related to this Case” [Doc.

83] is DENIED.

The Clerk is respectfully instructed to mail the Plaintiff a blank § 2241

form, along with a copy of this Order, and to close this case.

IT IS SO ORDERED.

Signed: August 31, 2023

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< Reidinger Ls,

Chief United States District Judge ely

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.