The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:22-cv-00127-MR
ANTHONY HARRISON MOORE, )
)
Plaintiff, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
CHRISTOPHER P. MURRAY, et al., )
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on the Motion for Summary
Judgment filed by Defendants Darren Daves, Dirriel Kale, Jr.,1 and
Christopher P. Murray [Doc. 38]. Also pending is the Plaintiff’s Motion for
the Appointment of Counsel [Doc. 43].
I. BACKGROUND
The pro se Plaintiff Anthony Harrison Moore filed this action pursuant
to 42 U.S.C. § 1983, addressing incidents that allegedly occurred while he
was incarcerated at the Alexander Correctional Institution.2 [See Doc. 1:
Complaint]. The Plaintiff’s unverified Complaint passed initial review against
1 The Clerk will be instructed to update the Court’s record with the correct spelling of
Defendant Kale’s first name.
2 The Plaintiff presently resides at the Bertie Correctional Institution.
Defendants Daves, Kale, and Murray for claims of use of excessive force
and failure to intervene. [Doc. 9: Order on Initial Review]. The Plaintiff seeks
a declaratory judgment, injunctive relief, and compensatory damages. [Doc.
1: Complaint at 5].
The Defendants filed the instant Motion for Summary Judgment and
supporting materials. [Doc. 38: MSJ]. Thereafter, 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 motion and of the manner in which evidence could be submitted to
the Court. [Doc. 42: Roseboro Order]. The Plaintiff filed a response as well
as a motion for the appointment of counsel. [Doc. 44: Plaintiff’s “Affidavit”;3
Doc. 43: Mo. for Counsel]. The Defendants filed a Notice informing the Court
that they do not intend to reply. [Doc. 45: Notice]. The Motion for Summary
Judgment 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
3 Although verified and titled an “Affidavit,” this document contains only legal conclusions
and conclusory contentions about what the video footage depicts.
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 forecast of evidence viewed in the light most favorable to the
Plaintiff shows the following.
Officer Kale was conducting rounds at the Alexander CI on the
afternoon of August 2, 2021 when he observed that the Plaintiff’s cell window
was covered. [Doc. 40-5: Kale Affid. at ¶ 3]. When the Plaintiff did not
respond to Officer Kale’s commands to remove the covering, Kale radioed
for assistance. [Id. at ¶¶ 3-4]. Unit Manager Daves, Sergeant Moretz,4 and
Officer Siciak5 responded. [Id.]. Sergeant Moretz and Officer Kale peered
through the food trap door and observed the Plaintiff lying on the cell floor in
a puddle of vomit. [Id. at ¶ 5]. Officer Kale suspected that the Plaintiff might
be under the influence of an intoxicating substance. [Id.].
Unit Manager Daves arrived and ordered that the Plaintiff’s cell door
be opened. [Id. at ¶ 6]. Someone radioed for a nurse to come medically
assess the Plaintiff. [Id.]. After waiting outside the cell door for a nurse for
a few minutes, Unit Manager Davis, Sergeant Moretz, and Officer Kale
4 Sergeant Moretz is not a defendant in this case.
5 Officer Siciak is not a defendant in this case.
entered the cell, followed a short time later by Nurse Margaret Allman6 and
Officer Siciak. [Id. at ¶ 7]. Nurse Allman checked the Plaintiff’s vital signs
and asked for the Plaintiff to be taken to main medical for evaluation. [Id. at
¶ 8]. Staff moved the Plaintiff to the doorway of his cell and attempted to
place him in restraints so that he could be transported safely. [Id. at ¶ 9]. The
Plaintiff repeatedly bent his knee and kicked at officers; he began struggling
for approximately 30 seconds, and he resisted staff’s efforts to stand him up
and place him in a wheelchair. [Id.].
Captain Daves used his Conducted Electronic Weapon (“CEW”) to
administer a “drive stun” to the Plaintiff’s back in order to gain his compliance
and to stop his assaultive behavior, pursuant to policy. [Doc. 40-8: Daves
Affid. at ¶¶ 11, 14]. Davis did not consider OC pepper spray to be a viable
option due to the proximity of other staff members. [Id. at ¶ 11]. Daves’ use
of the CEW prompted the Plaintiff’s compliance and allowed staff to transport
him to medical without any further difficulty. [Id. at ¶ 16]. The only use of
force during the incident was Captain Daves’s single use of a CEW drive
stun. [Id. at ¶ 17; Doc. 40-5: Kale Affid. at ¶ 14].
Unit Manager Murray was not on duty on August 2, 2021. [Doc. 40-6:
Murray Affid. at ¶ 9; Doc. 40-2: MSJ Ex at 1-25 (Gate Log)]. He did not take
6 Nurse Allman is not a defendant in this case.
part in, or witness, any of the events involving the Plaintiff that day. [Doc. 40-
6: Murray Affid. at ¶ 10]. The Incident Report’s reference to Murray using a
CEW on the Plaintiff is erroneous. [Id. at ¶ 7].
The Defendants filed footage from a housing unit surveillance video
camera that shows the following events:7
3:15:29 An officer walks to a cell with its window covered, knocks
repeatedly, and appears to speak into his radio.
3:16:17 A second officer arrives at the cell.
3:16:20 The first officer opens the trap and both officers peer inside.
3:16:43 The cell door is opened.
3:18:59 Several officers enter the cell.
3:22:36 A nurse enters the cell with medical equipment.
3:26:09 The nurse exits the cell.
3:26:23 An officer pushes a wheelchair to the open cell door.
3:26:59 The Plaintiff is pulled into the cell doorway on his stomach,
with his hands behind his back.
3:27:15 The Plaintiff begins kicking.
3:27:25 The Plaintiff continues jerking his body and kicking.
3:28:40 The Plaintiff is lifted into the wheelchair and escorted away.
7 The camera depicts the dayroom. The Plaintiff’s cell doorway is visible, however, the
view is partially obstructed by a stairway and officers.
IV. DISCUSSION
The Eighth Amendment8 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
8 The Complaint refers to the Fourteenth Amendment; however, it is the Eighth
Amendment that applies to excessive force claims by convicted prisoners. [See Doc. 9:
Order on Initial Review at 2, n.1].
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).
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 alleges that he was tazed in the back while he was lying
facedown, handcuffed, and making no aggressive movements. [Doc. 1-1:
Compl. Attachment at 3]. However, he has not forecast any evidence to
support this claim. First, as to Defendant Murray, the undisputed forecast of
evidence demonstrates that Defendant Murray was not working on August
2, 2021, and he had no involvement in the incidents at issue. As to
Defendant Daves, the forecast of evidence, including video footage, shows
that the Plaintiff began kicking and thrashing when officers attempted to
restrain him, that this continued for at least 30 seconds, and that Defendant
Daves administered a single drive stun with his CEW to stop the Plaintiff’s
resistive and assaultive behavior. See Scott, 550 U.S. at 380. As for
Defendant Kale, Plaintiff has presented no forecast that Kale employed a
CWE on Plaintiff at all. The Plaintiff has not forecast evidence that
Defendants Daves or Kale or anyone else applied force maliciously and
sadistically for the very purpose of causing harm, or that any Defendant failed
to intervene in the violation of his rights. Accordingly, there is no genuine
dispute of material fact as to any Defendant’s use of excessive force or
failure to intervene, and the Defendants’ Motion for Summary Judgment will
be granted.
“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 the Defendants violated a constitutional right, they are entitled to
qualified immunity on this ground as well.
In the Motion for the Appointment of Counsel [Doc. 43], the Plaintiff
claims that he cannot afford counsel; that his imprisonment will limit his ability
to litigate this case; that the issues are complex and will require research and
investigation; that his access to law library and his knowledge of the law are
limited; that a trial will involve conflicting testimony, the introduction of
evidence, and cross-examination that are better handled by counsel; and
that he has been unable to obtain legal assistance.
There is no absolute right to the appointment of counsel in civil actions
such as this one. Therefore, a plaintiff must present “exceptional
circumstances” in order to require the Court to seek the assistance of a
private attorney for a plaintiff who is unable to afford counsel. Miller v.
Simmons, 814 F.2d 962, 966 (4th Cir. 1987). The Plaintiff has failed to
demonstrate the existence of exceptional circumstances that would warrant
the appointment of counsel, and his Motion is denied.
IV. CONCLUSION
For the reasons stated herein, the Court grants Defendants’ Motion for
Summary Judgment, and this action is dismissed with prejudice. The
Plaintiff’s Motion for the Appointment of Counsel is denied.
ORDER
IT IS, THEREFORE, ORDERED that:
1. The Defendants’ Motion for Summary Judgment [Doc. 38] is
GRANTED, and this action is DISMISSED WITH PREJUDICE.
2. The Plaintiffs Motion for the Appointment of Counsel [Doc. 43] is
DENIED.
3. The Clerk is respectfully instructed to update the Court’s records
to reflect that Defendant Kale’s first name is spelled “Dirriel”
rather than Dirnel.
IT IS SO ORDERED.
Signed: May 15, 2024
Martifi Reidinger ee
Chief United States District Judge MS
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