The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:21-cv-00109-MR
WILLIAM BRADLEY MOORE, )
)
Plaintiff, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
STANLEY DALE CHURCH, et al., )
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on Defendants Stanley Dale
Church, Luis Velasco, and Michael V. Baker’s Motion for Summary
Judgment [Doc. 35].
I. BACKGROUND
The incarcerated Plaintiff William Bradley Moore, proceeding pro se, is
incarcerated in the North Carolina Department of Adult Corrections
(“NCDAC”). The Plaintiff filed this action pursuant to 42 U.S.C. § 1983
addressing incidents that allegedly occurred at the Alexander Correctional
Institution.1 [See Doc. 1: Complaint]. The Plaintiff’s unverified Amended
1 The Plaintiff is presently incarcerated at the North Carolina Central Prison.
Complaint2 passed initial review against Defendants Church, Velasco, and
Baker on Eighth Amendment claims for the use of excessive force and failure
to intervene. [Doc. 5: Am. Compl; Doc. 9: Order on Initial Review]. The
claims against the Defendants in their official capacities were dismissed with
prejudice.3 [Doc. 9: Order on Initial Review at 3-4]. The Plaintiff seeks
compensatory and punitive damages. [Doc. 5: Am. Compl. at 5].
The Defendants filed the instant Motion for Summary Judgment. [Doc.
35: MSJ]. 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. 39:
Roseboro Order]. The Plaintiff filed an unverified Response. [Doc. 42: MSJ
2 The Plaintiff filed the Amended Complaint before the Complaint had been reviewed for
frivolity. The Complaint is not signed under penalty of perjury. See 28 U.S.C § 1746. It
contains a Notarial Certificate which indicates only that the Plaintiff signed the Complaint.
[Doc. 1: Complaint at 6-7]. Such certification is not the equivalent of a verification or
affidavit, and it is not a certification that the Plaintiff swore to the truth of the Complaint’s
contents. See generally N.C. Gen. Stat. § 10B-41 (describing notarial certificate of
acknowledgement); Pratt v. Allbritton, No. 4:16-cv-00198-BR, 2018 WL 4610151, at *7
(E.D.N.C. Aug. 8, 2018), report and recommendation adopted, No. 4:16-cv-198-BR, 2018
WL 4604522 (E.D.N.C. Sept. 21, 2018), aff’d sub nom. Pratt v. Albriton, 764 F. App’x 343
(4th Cir. 2019). Accordingly, the Complaint will not be considered in the summary
judgment analysis.
3 The Court, therefore, will not address the Defendants’ present argument that the
Plaintiff’s official-capacity claims should be dismissed. [See Doc. 37: MSJ Memo. at 20].
Response]. The Defendants have not replied, and the time to do so has
expired. 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
(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 following is a summary of the relevant portions of the undisputed
forecast of evidence.
The Plaintiff is serving a 16-year sentence for a number of offenses,
including robbery with a dangerous weapon (principal), first-degree
kidnapping (principal), assault with a deadly weapon (principal), and
possession of a firearm by a felon (principal). [See Doc. 38-1: MSJ Ex
(OPUS Report)]. Between the Plaintiff’s admission to NCDAC in October
2009 and the date of the incident at issue in January 2021, the Plaintiff had
received 46 disciplinary infractions for offenses including “disobey order”
(11); “assault person w/weapon” (2); “fight w/ weapon or req. out. med” (1);
“threaten to harm/injure staff” (1); and “fighting” (2). [Doc. 38-2: MSJ Ex
(Infraction Report)].
On January 16, 2021, Officer Baker responded to a Code 4 request for
assistance at approximately 2:05 p.m. [Doc. 38-7: Baker Decl. at ¶ 6; see
Doc. 38-5: MSJ Ex at 17 (Baker Statement)]. Baker observed the Plaintiff
being combative with staff and refusing to submit to restraints. [Doc. 38-7:
Baker Decl. at ¶ 7; id.]. Baker and other officers put the Plaintiff into restraints
and began escorting him to restrictive housing. [Doc. 38-7: Baker Decl. at ¶¶
8-9].
While the Plaintiff was being escorted into the hallway, he became
combative again and attempted to pull and turn away from the escort. [Id. at
¶ 10]. Officer Baker placed the Plaintiff against the nearest flat surface, the
floor, in order to gain compliance and control. [Id. at ¶ 11]. At no time was
the Plaintiff punched or kicked in the face or head; he was placed on the
ground pursuant to procedure when he became combative. [Id. at ¶ 12].
The Plaintiff was secured in leg restraints, and he was escorted to restrictive
housing. [Id.]. The minimum amount of force was used to obtain the
correctional objective. [Id. at ¶ 13].
The Plaintiff received a use of force evaluation at the Clinic at 2:30 p.m.
[Doc. 38-6: MSJ Ex at 30]. The Plaintiff complained that he had been pepper
sprayed and needed to “decon.” [Id.]. He appeared to be in pain; he had
two minor lacerations on top of his head, a laceration above his right eye,
and a swollen nose; and he complained of having an electric control device
used to his buttocks, although no burn marks or prongs were noted. [Id. at
30-31]. The Plaintiff was sent to an outside emergency department for
evaluation. [Id. at 32]. The Plaintiff received three staples to his scalp and
four stitches to his eyebrow at the Catawba Valley Medical Center. [Doc. 38-
6: MSJ Ex at 158-62]. CT scans of his cervical spine and head revealed no
acute findings. [Id. at 164-65].
The Plaintiff received disciplinary infractions for “disobey order” and
“profane language” for the January 16, 2021 incident. [See Doc. 38-2: MSJ
Ex (Infraction Report)].
The Defendants have manually filed video exhibits containing footage
from the housing pod [Doc. 38-8], control booth [Doc. 38-9], and hallway
[Doc. 38-10] that show the following events:4
2:04:37 The Plaintiff is standing at an upper tier cell door when
Officer Velasco comes into view and appears to call up to
the Plaintiff [Doc. 38-8]
2:04:42 The Plaintiff, at the top of the stairs, and Velasco, in the
Dayroom, appear to converse; the Plaintiff descends the
stairs, speaking and gesturing [Doc. 38-8]
2:04:52 The Plaintiff exits the stairs and crosses the Dayroom to
the water fountain [Doc. 38-8]
4 The videos are partially obstructed by physical barriers such as the control booth walls
and hallway doors, and by the cameras’ limited range of view.
2:05:00 The Plaintiff continues conversing with Velasco and
gesturing [Doc. 38-8]
2:05:06 Velasco speaks into his radio and begins walking towards
the Plaintiff, accompanied by Officer Howell [Doc. 38-8]
2:05:17 The Plaintiff walks towards Velasco, speaking, and
Velasco reaches for his pepper spray [Doc. 38-8]
2:05:18 Velasco pepper sprays the Plaintiff, who turns his face and
walks away from the officers [Doc. 38-8]
2:05:20 Velasco grabs one of the Plaintiff’s arms, places his other
arm behind the Plaintiff’s back, and directs Plaintiff to the
floor; Plaintiff struggles and tries to stand [Doc. 38-8]
2:05:22 Booth officer speaks into the radio [Doc. 38-9]
2:05:23 Officer Howell joins Velasco and the Plaintiff on the floor as
the Plaintiff continues to struggle and resist [Doc. 38-8]
2:05:32 Additional officers arrive; Howell begins to deliver strikes
with a closed fist [Doc. 38-8; Doc. 38-9]
2:05:41 The Plaintiff continues to resist [Doc. 38-9]
2:05:52 The Plaintiff is handcuffed [Doc. 38-8]
2:06:50 The Plaintiff is lifted to his feet and is escorted to the
hallway [Doc. 38-8; Doc. 38-9]
2:07:01 Near the hall entrance, the Plaintiff pulls and turns away
from the escorting officers [Doc. 38-9]
2:07:02 The Plaintiff is directed to the floor and appears to strike a
gray bin with his head; multiple officers restrain him [Doc.
38-10]
2:09:04 The Plaintiff is lifted to his feet and he walks down the
hallway under escort; his face and head are bloody [Doc.
38-10]
IV. DISCUSSION
A. Excessive Force
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). In adjudicating an excessive force claim, the Court must
consider such factors as the need for the use of force, the relationship
between that need and the amount of force used, the extent of the injury
inflicted, and, ultimately, whether the force was “applied in a good faith effort
to maintain or restore discipline, or maliciously and sadistically for the very
purpose of causing harm.” Whitley, 475 U.S. at 320-21. The Supreme Court
has made clear that “[a]n inmate who is gratuitously beaten by guards does
not lose his ability to pursue an excessive force claim merely because he
has the good fortune to escape without serious injury.” Wilkins v. Gaddy,
559 U.S. 34, 38 (2010).
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 Plaintiff claims that the Defendants violated the Eighth
Amendment when Velasco pepper sprayed him and tackled him to the
ground; when Velasco and Baker slammed him to the ground and kicked
and punched his head and face while Church stood by; and when Church
dry-tased him after he was restrained. [Doc. 5: Am. Complaint at 4-6].
However, the Plaintiff has not forecast any evidence in support of these
claims. The forecast of evidence demonstrates that the Plaintiff repeatedly
refused to follow verbal commands; that the Plaintiff physically resisted
officers; and that the use of force, including pepper spray and hands-on force
of multiple officers, was required to overcome the Plaintiff’s resistance and
to restrain him. [See Doc. 38-7: Baker Decl. at ¶¶ 4, 7, 10-13; Doc. 38-8;
Doc. 38-9; Doc. 38-10]. There is no evidence whatsoever that any
Defendant kicked or punched the Plaintiff’s face or head, used more force
than was reasonably warranted under the circumstances, or failed to
intervene to prevent the Plaintiff’s constitutional rights from being violated.
[See Doc. 38-7: Baker Decl. at ¶ 12; Doc. 38-8; Doc. 38-9; Doc. 38-10]. The
Plaintiff has presented nothing to overcome what is shown on the video,
which is undisputed. [Doc. 38-10]. Because there is no forecast of evidence
that any Defendant violated the Eighth Amendment, the Defendants’ Motion
for Summary Judgment is granted
B. 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 (4" Cir. 2015) (internal quotation marks
omitted).
Here, because the Plaintiff has not forecast evidence that any
Defendant violated a constitutional right, the Defendants are also entitled
qualified immunity. Accordingly, summary judgment is granted on this
ground as well.
IV. CONCLUSION
For the reasons stated herein, the Court grants the Defendants’ Motion
for Summary Judgment, and this action is dismissed with prejudice.
ORDER
IT IS, THEREFORE, ORDERED that Defendants’ Motion for Summary
Judgment [Doc. 35] is GRANTED, and this action is DISMISSED WITH
PREJUDICE.
The Clerk is respectfully instructed to terminate this action.
IT IS SO ORDERED. Signed: November 7, 2023
ie ee
Chief United States District Judge AS
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