# Dennis v. Torres

> District Court, W.D. North Carolina · March 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10260849

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** March 18, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:22-cv-00057-MR

ANTWAIN LAMAR DENNIS, )
)
Plaintiff, )
)
vs. ) ORDER
)
)
LESTER TORRES, et al., )
)
Defendant. )
___________________________ )

THIS MATTER comes before the Court on Plaintiff’s “Prayer for Relief”
[Doc. 59] and “Motion for prayer of Judgement for Plaintiff respose” [Doc. 71
(errors uncorrected)] and Defendants’ Motion for Summary Judgment [Doc.
82].
I. PROCEDURAL BACKGROUND
Pro se Plaintiff Antwain Lamar Dennis (“Plaintiff”) is a prisoner of the
State of North Carolina currently incarcerated at Granville Correctional
Institution in Butner, North Carolina. He filed this action pursuant to 42
U.S.C. § 1983 against Defendants Lester Torres, FNU Cook, Whatt White,
Giavanni Caban, Dustin Goins, Christopher Hansley, and Luis Velasco, all
identified as officers at Alexander Correctional Institution (“Alexander”) in
Taylorsville, North Carolina. Plaintiff alleged that Defendants Goins, Torres,
Hansley, Caban, Velasco, and White used excessive force on him on June
19, 2021 in retaliation for Plaintiff’s submission of a PREA1 grievance against

Defendant Torres and that Defendant Velasco “beat [Plaintiff] up” and “kept
shocking [Plaintiff]” during Plaintiff’s transport to an outside hospital after a
suicide attempt in or around October 2021. [See Docs. 1, 9]. Plaintiff also

alleged that he was repeatedly called a “n****r” and that the June 2021
beating was a “bias hate crime.” [Doc. 1 at 4-5].
Plaintiff’s Complaint survived initial review on his First Amendment
retaliation, Eighth Amendment excessive force, and Fourteenth Amendment

equal protection claims against Defendants Torres, White,2 Caban, Goins,
Hansley, and Velasco. [Doc. 9; Doc. 25 at n.1]. Plaintiff’s remaining claims
and Defendant Cook were dismissed for Plaintiff’s failure to state a claim for
relief.3 [Id. at 13]. The Court entered a scheduling order setting the discovery

1 PREA stands for the Prison Rape Elimination Act, 34 U.S.C. § 30301. It seeks to
establish “zero tolerance” for the incidence of prison rape. The purpose of this Act is to
protect inmates in correctional facilities from sexual abuse and sexual assault. Gadeson
v. Reynolds, No. 2:08-3702-CMC-RSC, 2009 WL 4572872, at *3 (D.S.C. Dec. 4, 2009).

2 Nathan Wyatt waived service for Defendant Whatt White [Doc. 39] and answered
Plaintiff’s Complaint [Doc. 48]. To the extent these are not the same people, Plaintiff has
taken no action to correct this potential error or to otherwise effect service on Whatt White.
The Court, therefore, will proceed with Nathan Wyatt as being the proper Defendant and
notes that Plaintiff did not forecast any evidence against “Whatt White” or “Nathan Wyatt”
in any event.

3 The Court dismissed Plaintiff’s official capacity claims, any claim “based on Defendants
[allegedly] putting semen in Plaintiff’s food” for Plaintiff’s failure to identify which
Defendant or Defendants were allegedly responsible, any claim based on alleged verbal
deadline as July 7, 2023. [Doc. 55]. More than two months after the
expiration of this deadline, Plaintiff moved to compel Defendants to respond

to Plaintiff’s untimely discovery request. [See Docs. 70, 70-1]. The Court
denied Plaintiff’s motion and his subsequent improper attempt to compel a
response to his untimely request.4 [Docs. 73, 76, 78; see also Docs. 72, 69].

Plaintiff also filed the two pending motions, in which he sets out the monetary
relief he seeks and asks the Court to enter judgment for him, to enjoin
Defendants from retaliating against him, to award him monetary relief, and
for a jury trial. [Docs. 71, 59].

On January 16, 2024, Defendants moved for summary judgment.
[Doc. 82]. In support of their motion, Defendants submitted a memorandum,
their own Affidavits, Plaintiff’s Offender Information Sheet and Infraction

Summary, North Carolina Department of Adult Corrections (NCDAC) Use of
Force Policy, an Incident Report, and the Daily OIC Report for June 19, 2021.
[Docs. 84, 84-1 to 84-10]. Defendants argue that they are entitled to

harassment, any claim based on Plaintiff’s alleged placement in four-point restraints while
under suicide watch, and any claim based on the alleged mishandling of Plaintiff’s PREA
grievance. [Doc. 9]. After improperly moving to amend his Complaint, Plaintiff never filed
an Amended Complaint seeking to properly state claims on these grounds or a claim for
relief against Defendant Cook. [See Docs. 16, 25 (denying Plaintiff’s motion to amend
his Complaint without prejudice)].

4 Plaintiff sought among other things “camera footages from June 19, 2021 thru June 18,
2023” and specifically from June 19, 2021 Red unit A#5 cell 6 AM too 1:00pm.” [Doc. 72
at 1].
summary judgment because there was no use of excessive force on June
19, 2021 or October 2, 2021, and because they are entitled to qualified

immunity. [See Doc. 83].
On January 16, 2024, the Court entered an order in accordance with
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising the Plaintiff of

the requirements for filing a response to the summary judgment motions and
of the manner in which evidence could be submitted to the Court and
ordering that Plaintiff must respond within 14 days of that Order. [Doc. 82].
On February 5, 2024, Plaintiff filed an unsigned response to Defendants’

summary judgment motion, including his own declaration, and a motion for
extension of time to file such response. [Docs. 86, 86-1, 87]. The Court
granted Plaintiff’s motion and deemed his response timely filed. [2/6/2024

Text Order]. In his response, Plaintiff asks the Court “to order Alexander to
produce the camera footages on all cameras….” [Doc. 86 at 3]. Defendants
notified the Court of their intent not to file a reply brief. [Doc. 88].
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 construe all reasonable inferences and ambiguities against the

movant and in favor of the nonmoving party. Wai Man Tom v. Hospitality
Ventures LLC, 980 F.3d 1027, 1037 (4th Cir. 2020); see 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 relevant forecast of evidence in the light most favorable to Plaintiff
is as follows.
Plaintiff is currently serving a 53-year sentence for First Degree
Forcible Rape and First Degree Forcible Sex Offense. [Doc. 84-3]. He was

incarcerated at Alexander at the relevant times. [See Doc. 86]. Since
November 2019, Plaintiff has committed 101 prison infractions. [Doc. 84-4].
At the relevant times, Defendant Goins was a Correctional Sergeant in

the Restrictive Housing Unit (RHU) at Alexander [Doc. 84-1 at ¶ 4: Goins
Dec.], Defendant Hansley was a Correctional Officer in RHU at Alexander
[Doc. 84-7 at ¶ 4: Hansley Dec.], Defendant Caban was a Correctional
Officer at Alexander [Doc. 84-8 at ¶ 2: Caban Dec.], Defendant Torres was

a Correctional Officer at Alexander [Doc. 84-9 at ¶ 2: Torres Dec.], Defendant
Nathan Wyatt was assigned to RHU at Alexander [Doc. 84-5 at 1]; and
Defendant Velasco was a Correctional Officer in the RHU at Alexander [Doc.

84-10 at ¶ 4: Velasco Dec.].
After being targeted by “homasexuls CO’s and staff” and sexually
harassed at Alexander, Plaintiff “stop[ped] going to showers around
[Defendant Torres], certain officers” and “put preas” on Defendants Torres,

Hansley, and Caban. [Doc. 86-1 at 2 (errors uncorrected): Plaintiff’s Dec.].
“[T]hey kept giving [Plaintiff] stuff like extra food, … coffee, Honey buns,
outside food if [Plaintiff] would masterbate on them.” [Id. at 2 (errors

uncorrected): Plaintiff’s Dec.]. Plaintiff refused and told them to “stay away.”
[Id.]. “They kept trying to intimidate [Plaintiff] every day, putting false reports
on [him],… stealing money from [Plaintiff] on false write-ups,” and said

“prejudice things” to Plaintiff. [Id.].
On June 19, 2021, at approximately 12:00 p.m., Defendants Goins and
Hansley were ordered by the Officer-in-Charge (“OIC”) to assist in placing

Plaintiff in four-point restraints because of his violent, unmanageable, and
disruptive behavior that was causing a significant risk of harm to the Plaintiff.
[Doc. 84-1 at ¶¶ 5, 21; Doc. 84-7 at ¶ 5; see Doc. 84-5 at 2]. At the time,
Plaintiff was already in mechanical restraints, which had been placed on

Plaintiff by the previous shift. [Doc. 84-7 at ¶ 5]. Plaintiff was placed in the
four-point restraints solely to regain control of a situation and not to injure or
otherwise harm the Plaintiff. [Doc. 84-1 at ¶ 21]. Other than assisting with

Plaintiff’s restraints, Defendants Goins and Hansley did not touch Plaintiff in
any way. [Id. at ¶ 6; Doc. 84-7 at ¶ 6]. Defendants Caban and Torres had
no contact with Plaintiff on June 19, 2021, [Doc. 84-8 at ¶ 4; Doc. 84-9 at ¶
4], and Defendant Velasco was not involved in the placement of the four-

point restraints on Plaintiff and did not touch him that day, [Doc. 84-10 at ¶
6]. Defendant Nathan Wyatt missed work on June 19, 2021, and he was,
therefore, not involved in the application of restraints or any other events on

this day. [Doc. 84-5 at 1; see Doc. 84-1 at ¶ 27]. Plaintiff committed four
infractions that day, including profane language, threatening to harm or injure
staff, lock tampering, and attempting a Class B offense. [Doc. 84-4 at 2].

The Defendants present the following forecasts of evidence to which
Plaintiff presents no forecast in rebuttal, except as provided below. No
Defendant tampered with Plaintiff’s food or food tray or saw anyone tamper

with Plaintiff’s food or food tray in any way. [Doc. 84-1 at ¶¶ 10-11; Doc. 84-
7 at ¶¶ 10-11; Doc. 84-8 at ¶¶ 8-9; Doc. 84-9 at ¶¶ 8-9; Doc. 84-10 at ¶ 10-
11]. No Defendant retaliated against Plaintiff for filing a PREA grievance
against Defendant Torres. [Id. at ¶ 13; Doc. 84-7 at ¶ 13; Doc. 84-8 at ¶ 11;

Doc. 84-9 at ¶ 14; Doc. 84-10 at ¶ 13]. No Defendant has treated anyone,
including Plaintiff, differently because of their race or ever called an offender
a racist term.5 [Id. at ¶ 17; Doc. 84-7 at ¶ 17; Doc. 84-8 at ¶ 15; Doc. 84-9

at ¶ 15; Doc. 84-10 at ¶ 17].
On October 2, 2021, at approximately 7:05 a.m., Defendant Caban
witnessed Plaintiff attempt to swallow a battery. [Doc. 84-6 at 1]. Defendant
Caban called for assistance and, once additional staff arrived, pepper spray

was used to prevent Plaintiff from swallowing the battery. After a

5 Plaintiff’s forecast of evidence shows that, while he was housed at Alexander from 2021
to 2022, he was “treated different from other inmates, … oppress[ed], … called n****rs,
[and] disrespect[ed].” [Doc. 86-1 at 1]. Plaintiff’s forecast of evidence also shows, “The
officer was calling [him] N****r Jews Sargent Goings.” [Id. (errors uncorrected)].
Accordingly, at best, Plaintiff’s forecast of evidence ambiguously suggests that Defendant
Goins called him “N****r Jews.”
decontamination shower, Plaintiff was placed on self-injurious behavior
(“SIB”) precautions. [Id.]. Plaintiff was transported to an outside hospital by

Officers Dula and Delozier. [Id.]. They returned later that day without
incident and Plaintiff was returned to his cell for SIB observation. [Id. at 1-
2]. Defendant Velasco did not assist in transporting Plaintiff to the hospital

and has never tased the Plaintiff. [Doc. 84-10 at ¶ 22].
IV. DISCUSSION
A. Retaliation
An inmate has a clearly established First Amendment right to be free

from retaliation for filing grievances. See Booker v. S.C. Dep’t of Corrs., 855
F.3d 533, 540 (4th Cir. 2017). “The elements of a retaliation claim are: (1)
that the plaintiff engaged in protected activity; (2) that an adverse action was

taken against the plaintiff that would deter a person of ordinary firmness from
continuing to engage in the conduct; and (3) that the adverse action was
motivated, at least in part, by the plaintiff’s protected conduct.” Wade v.
Ballard, No. 2:13-cv-12817, 2016 WL 3693597, at *4 (S.D.W. Va. June 16,

2016) (citing Mt. Healthy City School Dist. Bd. of Educ. V. Doyle, 429 U.S.
274 (1977)).
Plaintiff alleged in his Complaint that he was beaten on June 19, 2021,

while in four-point restraints, in retaliation for having submitted a PREA
grievance against Defendant Torres. Plaintiff has presented no forecast of
evidence, however, that he was beaten or otherwise subjected to any use of

excessive force that day. Moreover, there is no forecast of evidence that any
conduct by Defendants was in retaliation for Plaintiff’s PREA grievance. At
best, Plaintiff’s forecast of evidence shows that he filed PREA grievances on

Defendants Torres, Hansley, and Caban and that “they” tried to intimidate
Plaintiff, put “false reports” on him, stole his money, and said “prejudice
things” to him. The forecast of evidence, however, does present anything
from which a reasonable jury could find a causal connection between a

protected activity and these Defendants’ conduct. Moreover, the forecast of
evidence shows that, on June 19, 2021, Plaintiff was engaging in violent and
disruptive behavior and that Defendants Goins and Hansley assisted in

placing Plaintiff in four-point restraints to restore order. From this forecast of
evidence, no reasonable jury could find that any conduct by Defendants was
in retaliation for or motivated by Plaintiff’s PREA grievance. There is,
therefore, no genuine issue for trial on Plaintiffs First Amendment retaliation

claim and the Court will grant his Motion for Summary Judgment on this
ground.
B. 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).

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). “[I]n making and carryout decisions involving the

use of force to restore order, prison officials undoubtedly must take into
account the very real threats the unrest presents to inmates and prison
officials alike, in addition to the possible harms to inmates against whom

force might be used.” Whitley, 475 U.S. at 320. “[I]n 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.” Williams, 77 F.3d at 761 (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).

There is no forecast of evidence here showing that any Defendant
used excessive force on Plaintiff. Again, the forecast of evidence shows that,
on June 19, 2021, Defendants Goins and Hansley assisted in placing Plaintiff
in four-point restraints to restore order. The forecast of evidence also shows

that no other use of force occurred while Plaintiff was restrained or otherwise
that day. Finally, the forecast of evidence also shows that Defendant
Velasco did not transport Plaintiff to an outside hospital on October 2, 2021,

and never tased the Plaintiff.
From this forecast of evidence, no reasonable juror could conclude that
any Defendant used excessive force on Plaintiff in violation of the Eighth

Amendment. As such, there is no genuine issue of material fact as to
Plaintiff’s excessive force claim, and it will be dismissed.
C. Equal Protection

To establish an equal protection violation, Plaintiff must demonstrate
that he has been treated differently from others with whom he is similarly
situated, and that the unequal treatment was the result of intentional or
purposeful discrimination. Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.

2001). Racial statements can serve as evidence of discriminatory intent.
See Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1133 (4th
Cir. 1988) (citation omitted). “Racial epithets, however, do not themselves

implicate constitutional rights and cannot, on their own, form the basis of a
constitutional claim.” Harrison v. Prince William Cty Police Dept., 640
F.Supp.2d 688, 706 (E.D. Va. Feb. 10, 2009) (citation omitted).
Plaintiff’s equal protection claim passed initial review on his allegations

that the June 19, 2021 beating was a “bias hate crime” and that Defendants
called him a “n****r.” The forecast of evidence, however, does not show that
such beating occurred and only suggests that Defendant Goins may have

called him a “N****r Jew” on a single occasion. Even if Defendant Goins did
inexcusably call Plaintiff by this pejorative epithet, the forecast of evidence
is nonetheless insufficient for a reasonable jury to find an equal protection

violation. That is, racial slurs alone do not implicate constitutional rights.
Harrison, 640 F.Supp.2d at 706.
As such, there is no genuine issue of material fact as to Plaintiff’s equal

protection claim, and it will be dismissed.
D. 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).
Here, because Plaintiff has not presented a forecast of evidence that
Defendants violated a constitutional right, Defendants are entitled to qualified
immunity. As such, summary judgment for Defendants would also be proper
on this ground. Since the Defendants are entitled to such summary judgment
on issues of liability, Plaintiff's filings setting forth the relief he desires [Docs.
59, 71] are likewise denied.
V. CONCLUSION
For the reasons stated herein, the Court will grant Defendants’ Motion
for Summary Judgment.
ORDER
IT IS, THEREFORE, ORDERED that Defendants’ Motion for Summary
Judgment [Doc. 82] is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Motions [Docs. 59, 71] are
DENIED.
IT IS SO ORDERED.
Signed: March 18, 2024

Martifi Reidinger ee
Chief United States District Judge AS

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10260849. Public record. Not legal advice.