Abdullah-Malik v. Cathy

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:22-cv-00114-MR

NAFIS AKEEM-ALIM )

ABDULLAH-MALIK,1 )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

EDDIE CATHEY, et al., )

)

Defendants. )

___________________________ )

THIS MATTER is before the Court a Motion for Summary Judgment

filed by Defendants Ashley Grooms, Tim Hodgson, Cody Kiker, Pam Hypes,

Kelly Martin, Jonathan Philemon, Bradley Purser, Dan Rogers, Dana

Rucker, and F. Speer [Doc. 64]. 2 Also pending is the Plaintiff’s “Emergency

Notice” that was docketed as a Motion to Stay. [Doc. 95].

1 According to the North Carolina Department of Adult Corrections’ (“NCDAC”) website,

the Plaintiff’s name is Nafis A. Malik. See https://webapps.doc.state.nc.us/opi/viewoffend

er.do?method=view&offenderID=0574723&searchOffenderId=0574723&searchDOBRa

nge=0&listurl=pagelistoffendersearchresults&listpage=1 (last accessed Aug. 27, 2024);

Fed. R. Evid. 201.

2 Identified as “Grooms,” “Hodgens” “Kiker,” “Pam,” “K. Martin,” “Philmore,” “Pursor,” “D.

Rogers,” “Rucker,” and “Speer,” respectively, in the Amended Complaint. [Doc. 18 at 1,

5-6]. Defendant Grooms was formerly known as Ashley Fultz. The Clerk will be instructed

to correct the Defendants’ names in the Court’s record.

I. BACKGROUND

The incarcerated Plaintiff Nafis Malik, proceeding pro se, is presently

incarcerated in NCDAC. He filed this civil rights action addressing incidents

that allegedly occurred while he was a pretrial detainee at the Union County

Jail (“UCJ”). [Doc. 1: Compl.]. The unverified Amended Complaint passed

initial review against Defendants Martin, Hodges, Grooms, Purser, and Kiker

for the use of excessive force and sexual contact, and the Court exercised

supplemental jurisdiction over the Plaintiff’s related North Carolina assault

and battery claims. The Amended Complaint also passed initial review

against Defendants Speer, Rucker, Purser, Grooms, Philemon, and Rogers

for imposing unconstitutional conditions of confinement; against Defendants

Hype and Speer for deliberate indifference to a serious medical need; and

against Defendants Rogers and Grooms for retaliation. [Doc. 18: Am.

Compl.; Doc. 20: Order on Initial Rev.].

The Defendants filed a Motion for Summary Judgment. [Doc. 64:

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 responding to the summary judgment motion and of the

manner in which evidence could be submitted to the Court. [Doc. 80:

Roseboro Order]. The Plaintiff responded and filed supporting materials

opposing summary judgment.3 [See, e.g., Doc. 71: MSJ Resp.; Doc. 72:

Medical Records; Doc. 86: Verified MSJ Resp.]. The Defendants have

replied. [Doc. 73: MSJ Reply; see Doc. 91: Notice]. These matters are

therefore ripe for disposition.

On August 22, 2024, the Plaintiff filed an “Emergency Notice” in which

he requests that the Court stay this action. [Doc. 95].

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,

3 The Court has considered the relevant portions of the record including the Plaintiff’s

verified filings.

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 relevant forecast of evidence, viewed in the light most favorable to

the Plaintiff, shows the following.4

On July 29, 2020, the Plaintiff was admitted to the UCJ as a pretrial

detainee. [Doc. 64-4: Greenlee Aff. at ¶ 17; See Doc. 65-2: MSJ Ex. at 1-3

(Booking Report)]. He had received right hip surgery approximately six

weeks earlier and cervical spine surgery approximately five months prior to

that. [Doc. 84-3: Plaintiff’s Decl. at 1; Doc. 64-4: Greenlee Aff. at ¶ 18]. The

Plaintiff’s medical records and screening indicated that he needed a walker,

and he was allowed to use one.5 [Doc. 64-4: Greenlee Aff. at ¶ 19]. The

medical records further showed that a wheelchair was “authorized, but not

mandated.” [Doc. 64-4: Greenlee Aff. at ¶ 32; see Doc. 85: Plaintiff’s Med.

Ex. at 20-21 (Jan. 28, 2021 Dr. Homesley letter stating that Plaintiff should

be given the use of a wheelchair due to left hip arthritis)]. The Plaintiff was

encouraged to use a walker instead of a wheelchair in order to better

rehabilitate from surgery. [Doc. 64-4: Greenlee Aff. at ¶ 19].

4 The Court will not attempt to exhaustively address the voluminous materials, including

medical records, that the parties have filed. The Court highlights the relevant forecast of

evidence and the factual discrepancies between the parties’ accounts of the incidents.

5 The Plaintiff has made inconsistent statements that: he needed a wheelchair, a walker,

and a cane [Doc. 84-3: Plaintiff’s Decl. at 1]; that he was “unable to walk without a walker

and wheelchair” [Doc. 84-2: Plaintiff’s Decl. at ¶ 14]; and that he was “barely” able to walk

without a wheelchair or walker [Doc. 70: Ex. R-1 at 12:00].

Walkers and wheelchairs are not permitted in general housing areas

of the UCJ, so the Plaintiff was housed in a single-occupancy medical cell.

[Doc. 64-4: Greenlee Aff. at ¶ 20; Doc. 64-8: Philemon Aff. at ¶¶ 4-5]. There

was some concern about the Plaintiff’s ability to turn his wheelchair safely

inside the cell; however, one was provided at the Plaintiff’s insistence after it

was authorized by a provider. [Doc. 64-4: Greenlee Aff. at ¶ 32].

The Plaintiff was authorized by medical to have two mattresses, which

he was given. [See Doc. 64-10: Purser Aff. at ¶ 9; Doc. 85: Plaintiff’s Med.

Ex. at 20-21].

During August 2020, the Plaintiff received 11 prescriptions to treat a

variety of complaints, including three increasing prescriptions for gabapentin

to treat pain. [Doc. 64-4: Greenlee Aff. at ¶ 21]. During September 2020,

the Plaintiff received an additional six prescriptions, and all of his medications

were given to him. [Id. at ¶ 21-25]. Once, Nurse Speer threw medicine in

Plaintiff’s hand through the food slot and, on another occasion, Nurse Hypes

deliberately dropped the Plaintiff’s medicine through the trap slot.6 [Doc. 84-

2 at 83-92: Plaintiff’s Decl. at ¶¶ 18- 19].

6 The Defendants deny this and note occasions where the Plaintiff deliberately dropped

his medication or refused to follow instructions. [Doc. 62-4: Greenlee Aff. at ¶¶ 26-27].

On September 17, 2020, the Plaintiff did not have access to a

wheelchair; he fell in his cell during a meal pass while using a walker to

retrieve a food tray. [Doc. 84-3: Plaintiff’s Decl. at 2; Doc. 64-10: Purser Aff.

at ¶ 7; see Doc. 65-6: MSJ Ex. at 1-3 (Incident Report 2020-1064)]. Nurse

Hypes yelled at the Plaintiff to get up, or he would be sent to a remote

temporary holding cell (THC) for “discipline and punishment.” [Doc. 84-2 at

45-56: Plaintiff’s Decl. at ¶ 12]. Hypes noted in the Plaintiff’s chart that the

Plaintiff’s bed “is very high [due to] having 2 mattress.” [Doc. 70: Ex. U at

36]. Medical provider Adona Struve believed that the extra height on

Plaintiff’s bed contributed to the fall, so she revoked the second mattress and

ordered its removal “for patient[] safety.” [Doc. 64-4: Greenlee Aff. at ¶ 31;

Doc. 64-10: Purser Aff. at ¶ 10; see Doc. 70: Ex. U at 22].

On September 18, 2020, Officers Kiker and Wade entered the

Plaintiff’s cell to remove his second mattress. [Doc. 62-6: Kiker Aff. at ¶ 8;

Doc. 64-4: Greenlee Aff. at ¶ 31]. The Plaintiff verbally and physically

resisted the officers. [Doc. 64-10: Purser Aff. at ¶ 12]. Kiker and Wade lifted

the Plaintiff and removed one of the mattresses. [Doc. 62-6: Kiker Aff. at ¶

8]. This was Kiker’s only involvement with the Plaintiff’s claims. [Id.].

Defendant Grooms had nothing to do with the mattress removal. [Doc. 64-

2: Fultz Aff. at ¶ 25].

The Plaintiff received inmate discipline as a result of resisting the

mattress removal. [Doc. 64-10: Purser Aff. at ¶ 12; Doc. 65-7: MSJ Ex. at 1-

3]. When an inmate is serving a period of disciplinary segregation, he is

required to wear a red jumpsuit instead of the usual orange. [Doc. 64-10:

Purser Aff. at ¶ 13]. Sergeant Rucker went to the Plaintiff’s cell with a red

jumpsuit due to the Plaintiff’s earlier rule violations. [Doc. 64-12: Rucker Aff.

at ¶ 14; Doc. 65-8: MSJ Ex. at 1-4]. The Plaintiff slid onto the floor when

Rucker entered his cell, saying that he could not change his jumpsuit

because he fell. [Doc. 64-12: Rucker Aff. at ¶¶ 15-16]. Nurse Dozier

responded to the cell and determined that the Plaintiff needed to be moved

to a THC without a bed frame because he had fallen twice in less than 24

hours. [Id. at ¶ 17; Doc. 70: Ex. U at 35; see Doc. 64-2: Fultz Aff. at ¶ 25].

Officers Rucker, Purser, and Black, carried the Plaintiff to the THC.7 [Doc.

64-12: Rucker Aff. at ¶ 18].

At the THC, Sergeant Rucker and Officer Purser forcibly changed the

Plaintiff’s jumpsuit. [Doc. 64-12: Rucker Aff. at ¶ 19]. While removing the

orange jumpsuit, the Plaintiff’s boxers came partway down his thighs and

7 Video footage conclusively shows that Kiker was not involved in this. [Doc. 70: Exs.

G-1, G-2].

Rucker touched the Plaintiff’s penis.8 [Id. at ¶ 22; Doc. 64-9: Price9 Aff. at

¶¶ 7-8]. Defendant Grooms was present.10 [Doc. 71-3: Plaintiff’s Aff. at 4].

The THC where the Plaintiff was taken had no toilet, running water,

bed or bedframe, window or natural light; it had poor ventilation; there was a

blackout cover on the cell door; and there were no privacy curtains on the

shower, no outside recreation, and an “inadequate” law library. [Doc. 71-3:

Plaintiff’s Aff. at 3-4; Doc. 84-2 at 5-13: Plaintiff’s Decl. at ¶ 3; Doc. 84-2 at

23-27: Plaintiff’s Decl. at ¶ 8; Doc. 84-2 at 45-56: Plaintiff’s Decl. at ¶ 14;

Doc. 84-2 at 62-73: Plaintiff’s Decl. at ¶ 11; Doc. 84-3: Plaintiff’s Decl. at 3].

The Plaintiff was in 23-1 detention in the THC, meaning that he had one hour

outside the cell to shower and use the kiosk and phone. [Doc. 84-2 at 5-13:

Plaintiff’s Decl. at ¶ 3; Doc. 84-2 at 37-42: Plaintiff’s Decl. at ¶¶ 6-7; Doc. 71-

3: Plaintiff’s Aff. at 5]. At no time was the Plaintiff deprived of time out of his

8 Defendant Rucker denies touching Plaintiff’s penis. [Doc. 64-12: Rucker Aff. at ¶ 21].

9 Lieutenant Matthew Price interviewed the Plaintiff on October 1, 2020 as part of his

criminal investigation into the Plaintiff’s sexual assault allegation. [See Doc. 64-9: Price

Affid.; Doc. 70: Ex. R-1].

10 Defendant Grooms denies involvement in this incident. [Doc. 64-2: Fultz Aff. at ¶ 25].

cell, access to the kiosk system,11 exercise, showers, or nutritious food

service. [Doc. 64-8: Philemon Aff. at ¶ 6].

On September 30, 2020, the Plaintiff reported to a state court judge

that he was sexually assaulted on September 18, 2020; this led UCJ to

initiate an investigation by jail staff and by criminal detectives.12 [Doc. 84-4:

Plaintiff’s Ex. at 12 (Sept. 30, 2020 Order by Judge Williams directing UCSO

to meet with Plaintiff within 48 hours); Doc. 84-2 at 45-56: Plaintiff’s Decl. at

¶ 15; Doc. 64-1: Dennis Aff. at ¶ 28]. UCSO Lieutenant Matthew Price

conducted a videotaped interview of the Plaintiff about his sexual assault

allegations. [See Doc. 70: Ex. R-1]. The Plaintiff explained that his boxers

were pulled down to mid-thigh as staff forcibly removed his jumpsuit, that

Rucker’s hand came into contact with the Plaintiff’s penis and buttocks during

that process, but that the contact was not sexual in nature. [Doc. 64-9: Price

Aff. at ¶¶ 6-8].

On December 11, 2020, the Plaintiff returned to UCJ from a court date

in Rowan County. [Doc. 84-2 at 72-82: Plaintiff’s Decl. at ¶ 5]. He arrived

11 The Plaintiff’s contention that he had “no access to Kiosk” is inconsistent with the

Plaintiff’s other assertions and is conclusively refuted by the record of his electronic

submissions. [Doc. 84-2 at 45-56: Plaintiff’s Decl. at ¶ 29; see, e.g., Doc. 65-17: MSJ Ex.

at 13].

12The Defendants deny that the Plaintiff raised any allegations specifically against

Defendant Purser. [Doc. 64-1: Dennis Aff. at ¶ 28].

with a bag of legal materials that a Rowan County transport officer had

searched and “clear[ed].” [Doc. 84-2 at 72-82: Plaintiff’s Decl. at ¶ 5]. The

Plaintiff, sitting in a wheelchair, retrieved his bag of legal documents from a

shelf and placed it on his lap; he requested a supervisor. [Doc. 84-2 at 72-

82: Plaintiff’s Decl. at ¶ 5]. Defendant Grooms told the Plaintiff that the

materials needed to be searched and reached for the bag of documents on

the Plaintiff’s lap. [Doc. 64-2: Fultz Aff. at ¶ 7]. The Plaintiff grabbed the bag,

physically resisted,13 and tried to rise out of his wheelchair. [Doc. 64-2: Fultz

Aff. at ¶¶ 9, 11; Doc. 64-7: Martin Aff. at ¶ 11]. Staff responded, including

Defendants Martin, Hodgson, and Rogers. [Doc. 84-2 at 14-22: Plaintiff’s

Decl. at ¶ 8; Doc. 84-3: Plaintiff’s Decl. at 3]. The Plaintiff continued resisting,

and he attempted to assault staff by kicking them. [Doc. 64-2: Fultz Aff. at ¶

14]. Defendant Martin drew her taser and warned that Plaintiff that if he did

not submit his effects for inspection and stop resisting, she would tase him

to obtain compliance.14 [Doc. 64-17: Martin Aff. at ¶ 12]. The Plaintiff

13 The Plaintiff’s description of this incident, including that he was not resisting, is

conclusively contradicted by the video evidence. [Doc. 84-2 at 14-22: Plaintiff’s Decl. at

¶ 11; see Doc. 70: Exs. C-1, C-2].

14 The Plaintiff states that Martin: placed him in an “illegal choke hold” [Doc. 71-4:

Plaintiff’s Decl. at ¶ 9]; “George Floyd choke[d]” him [Doc. 71-3: Plaintiff’s Decl. at 2, 4];

and used a “fist thrust” to his throat [Doc. 84-2 at 5-13: Plaintiff’s Decl. at ¶ 3]. The Court

need not accept these inconsistent contentions. Moreover, the video conclusively

demonstrates that Martin never placed him in a chokehold or had him on the floor.

continued resisting and kicking, so Martin administered a two-second drive

stun to the Plaintiff’s leg to stop his kicking. [Doc. 64-2: Fultz Aff. at ¶ 14;

Doc. 62-5: Hodgson Aff. at ¶ 14; Martin Aff. at ¶ 14]. The Plaintiff’s legs were

then shackled to the wheelchair, his hands were cuffed behind the

wheelchair, and he was taken to his cell where he received medical attention.

[Doc. 64-7: Martin Aff. at ¶ 16]. Officers found contraband in the Plaintiff’s

materials, i.e., a pen and staples.15 [Doc. 84-2 at 14-22: Plaintiff’s Decl. at ¶

13]. Grooms had no interaction with the Plaintiff between December 11 and

14, 2020. [Doc. 64-2: Fultz Aff. at ¶ 22].

On December 14, 2020, Defendants Hodgson and Martin went to the

Plaintiff’s cell: Hodgson to deliver mail and Martin to conduct a disciplinary

hearing. [Doc. 62-5: Hodgson Aff. at ¶ 23]. The Plaintiff was using the kiosk

system in the hallway outside of his cell at that time. [Id. at ¶ 24]. Hodgson

directed the Plaintiff to return to his cell to receive his mail and a disciplinary

hearing. [Id. at ¶ 25]. The Plaintiff initially complied but then he turned back,

stating that his kiosk time was about to expire. [Id. at ¶ 26]. Hodgson again

directed the Plaintiff to his cell but the Plaintiff refused and attempted to push

past Hodgson, using his walker. [Id. at ¶ 27]. Hodgson again directed the

15 The Plaintiff admits having a pen and staples, but he denies that they were contraband.

[Doc. 84-2 at 14-22: Plaintiff’s Decl. at ¶ 13].

Plaintiff to enter his room, and the Plaintiff again refused. [Id. at ¶¶ 28-29].

Hodgson placed his hand on the Plaintiff’s chest and directed him into the

cell.16 [Id. at ¶ 30]. The Plaintiff then tripped and fell. [Id. at ¶ 30]. Hodgson

attempted to assist the Plaintiff onto the bed but the Plaintiff refused his

assistance and continued to fight him.17 [Id. at ¶ 31]. Hodgson snatched the

Plaintiff roughly from the floor, placed him on the bed, and restrained him in

a seated position by placing his hands on the Plaintiff’s shoulders. [Id. at ¶

32; Doc. 71-3: Plaintiff’s Decl. at 5]. Martin attempted to proceed with the

disciplinary hearing but the Plaintiff was cursing and screaming, so she and

Hodgson left. [Doc. 62-5: Hodgson Affid. at ¶ 33]. Medical staff

subsequently came to the Plaintiff’s cell to clean a 2cm x 2cm abrasion on

his left forearm that had “minimal bleeding.” [Doc: 70: Ex. U at 25].

Neosporin and a Band-aid were applied. [Id.].

The Plaintiff filed 344 pages of grievances during the five months at

UCJ. [Doc. 64-1: Dennis Aff. at ¶¶ 24-25; Doc. 73-1: Dennis Supp. Aff. at ¶

16 The Plaintiff now contends that Defendant Hodgson did not touch his chest, but

rather, “judo chopped” his neck. [Doc. 71-4: Plaintiff’s Decl. at ¶ 12]. This inconsistent

allegation was not included in the Amended Complaint.

17 The Plaintiff’s contention that Hodgson yelled obscenities at him is refuted by the

audiotape; the Plaintiff’s contention that the Defendants “blurred out” their voices from the

recording is rejected. [Doc. 84-2 at 62-73: Plaintiff’s Decl. at ¶¶ 13, 18; see Doc. 70: Ex.

D-3].

10-11]. Fifty-three pages of this were medical grievances that included

medical and mental health requests, all of which received a response. [Doc.

64-1: Dennis Aff. at ¶ 26; see Doc. 65-17; Doc. 65-17: Ex. P; Doc. 70: Ex. U

at 125].

The Plaintiff filed grievances addressing the conditions of his

confinement on August 15 and 16; September 14; November 14, 15, 17 and

23; and December 1, 2, and 7, 2020. [See Doc. 73-2: Ex. X]. The Plaintiff

filed one grievance addressing Defendant Grooms on December 11, 2020,

which states:

I AM FILLING A OFFICIAL COMPLAINT TO MOVE FOR

CITATIONS WARRANT AGAINST OFFICER A. GROOMS

PHYSICAL ASSULT TO A US VETERAN MENTAL HEALTH

PATIENT, DISTRUCTION OF PROPERTY, THEFT BY

DECEPTION, LYING UNDER OATH TO LAW ENFORCEMENT

AND ABUSE OF DISCRETION AND POWER.

[Doc. 65-18: Ex. Q at 1; see Doc. 64-1: Dennis Aff. at ¶ 27] (errors

uncorrected). Defendant Rucker denied the grievance as meritless on

December 12, 2020, and Lieutenant Dennis denied the Plaintiff’s appeal on

December 18, 2020. [Id.]. Defendant Grooms never discussed the Plaintiff

outside of official reports, and she never discussed any punishment or

retaliation against the Plaintiff with any other UCSO personnel including

Defendant Rogers. [Doc. 64-2: Fultz Aff. at ¶¶ 23-24; Doc. 64-11: Rogers

Aff. at ¶¶ 9-10]. Defendant Rogers never ordered Grooms or any other

subordinate to retaliate against the Plaintiff for any reason. [Doc. 64-11:

Rogers Aff. at ¶¶ 9-10]. Neither Rogers, Grooms, nor any other of Rogers’

subordinates including Martin retaliated against the Plaintiff for any reason.

[Id.; Doc. 64-2: Fultz Aff. at ¶¶ 22-24; Doc. 64-1: Dennis Aff. at ¶ 27; Doc.

64-7: Martin Aff. at ¶ 41].

The Plaintiff received inmate discipline on multiple occasions at UCJ

due to his “routine violation of inmate rules, but each time, he received due

process before discipline was imposed.” [Doc. 64-11: Rogers Aff. at ¶ 8].

His discipline included:

9/18/20: Disrupting service, disobeying direct order, verbally

abusing staff; Plaintiff waived a disciplinary hearing

and received 80 days in segregation;

10/1/20: Failure to report to sick call; a hearing was conducted

and Plaintiff was found responsible and received 20

days of concurrent segregation;

10/27/20: Theft of jail property, disobeying direct order, verbally

abusing staff; a hearing was conducted and Plaintiff

was found responsible and received 70 days of

segregation;

11/27/20: Interfering with lockdown, disobeying direct order,

communicating threats; a hearing was attempted on

12/14/20 but Plaintiff became irate and refused to

participate and he received 130 days in segregation;

and

11/27/20: Accumulation of hazardous items; failure to pass

inspection; failure to turn in items; attaching items to

walls; storing or misuse of cleaning supplies; failure

to surrender contraband; possession of contraband;

possession of illicit drugs; damage to jail property;

Plaintiff refused to participate in the 12/14/20 and he

received 230 days in segregation.

[Doc. 64-7: Martin Aff. at ¶ 44(a)-(e)]. All of the Plaintiff’s disciplinary

proceedings were conducted in accordance with UCJ policy. [Id. at ¶ 46;

see Doc. 66-4: Ex. V; Doc. 66-5: Ex. W]. The Plaintiff did not serve the full

sentences of disciplinary segregation because he was released to

Mecklenburg County on December 19, 2020. [Doc. 64-7: Martin Aff. at ¶ 45;

Doc. 84-2 at 5-13: Plaintiff’s Decl. at ¶ 3].

The Defendants have filed audio and video footage of various

incidents. The recordings show that the following transpired on December

11, 2020:18

0:00 Plaintiff is frisked then sits in his wheelchair.

1:09 Plaintiff pushes himself to a wall and pulls a large

clear plastic bag, with items inside off of a shelf and

onto his lap.

1:44 Officer Grooms enters the area.

2:04 Plaintiff and Grooms converse.

2:37 Plaintiff removes his feet from the wheelchair

footrests and places them on the floor; he gestures

at Grooms.

18 Exhibits C-1 and C-2 depict the same incidents from different angles. Portions of the

events are blocked by officers’ bodies. The times on the videos are not synchronized.

2:39 Grooms reaches for the bag in Plaintiff’s lap; Plaintiff

grabs the bag and a struggle ensues; officers in the

area approach and assist.

2:49 Additional officers begin to arrive.

3:11 Grooms pulls away with the bag and its partial

contents; multiple officers surround Plaintiff in his

wheelchair.

3:13 Plaintiff begins kicking his legs.

3:30 Officer Martin leans towards Plaintiff with one arm

extended.

7:10 Plaintiff is wheeled away, with his legs shackled and

his hands cuffed behind him.

[Doc. 70: Ex. C-1].

1:29 Plaintiff kicks his legs.

1:35 Plaintiff flails his arms as a male officer behind him

tries to restrain them.

1:42 Officer Martin stands in front of Plaintiff with one arm

extended towards him.

1:51 Plaintiff’s wheelchair is tipped back; Martin has a

hand on Plaintiff’s raised leg, speaking to him.

3:29 Plaintiff is talking and moving around as officers

restrain his hands behind his back.

[Doc. 70: Ex. C-2].

The recordings show that the following transpired on December 14,

2020:19

00:10 Officer Hodgson approaches Plaintiff, who is standing with

his walker at a hallway kiosk opposite his closed cell door,

and they converse; Martin waits in the hallway.

00:18 Hodgson opens Plaintiff’s cell door.

00:33 Plaintiff turns his walker and passes Hodgson, into the cell.

00:43 Hodgson follows Plaintiff, holding a tablet and papers.

00:56 Plaintiff has turned back around and his arm gestures past

Hodgson, towards the kiosk.

1:19 Plaintiff, with his walker, steps beside Hodgson towards to

kiosk.

1:29 Hodgson pushes Plaintiff towards his cell door; Plaintiff’s

walker remains in the hallway; Hodgson and a female

officer follow; Martin remains in the hallway.

1:54 Martin approaches the cell doorway.

2:21 Martin returns to the hallway.

2:27 The other female officer leaves Plaintiff’s cell.

2:30 Hodgson leaves Plaintiff’s cell and closes the cell door.

19 Exhibits D-1 and D-2 depict a hallway leading to Plaintiff’s cell from the far ends of the

hallway, separated by a door. The videos have been combined for ease of reference.

Some events are blocked by doors and the officers’ bodies. Exhibit D-3 is an audio

recording of the incident; its time is not synchronized with the videos.

[Doc. 70: Ex. D-1, D-2]. Audio recording from that incident reflects the

following:

00:02 Plaintiff refers to the kiosk, says “come on, man,” and that

it’s going to be cut off and “you can’t restart it;” Hodgson

responds.

00:17 Plaintiff continues talking and says loudly, “the fuck you

doing, man.”

00:19 Hodgson says “go in your room.”

00:25 Plaintiff continues cursing loudly, says “I want my time out,”

and refers to being in “lockdown.”

00:34 Plaintiff says “it won’t restart,” and “you can’t restart it.”

00:37 Plaintiff shouts “what, what”; then clattering is heard.

00:43 Plaintiff says “get the fuck off me, man.”

00:46 Hodgson orders Plaintiff to “get over there,” and to “sit

down” repeatedly as Plaintiff continues arguing.

00:58 Hodgson loudly orders Plaintiff to “sit down.”

1:04 Hodgson orders Plaintiff to “stop” repeatedly.

1:07 Plaintiff says “stop assaulting me, officer.”

1:14 Plaintiff continues cursing and referring to the kiosk.

1:17 Hodgson says “sit down,” and Plaintiff says “get off me.”

1:21 Martin says “chill out so I can do your hearing.” Plaintiff

calls her “bitch,” curses at her, and says that she choked

and tased him for no reason.

1:29 Martin asks if Plaintiff is refusing to have his hearing.

1:35 Plaintiff continues yelling over Martin’s voice, curses, and

says something about the hearing.

1:36 Martin says “nope, you’re done.”

[Doc. 70: Ex. D-3].

October 1, 2020 video footage with audio from an interview room

at UCSO reflects the following:

8:22 Plaintiff, handcuffed and in a wheelchair, is brought into an

interview room, converses with two staff officers.

10:50 Plaintiff refers to the fact he is a veteran, his medical

conditions, and his desire for fresh air and more time out of

his cell.

14:40 Plaintiff says that the jumpsuit he was brought was too

small.

16:15 Plaintiff denies that he ever fell off of the bed, that he fell

because of the walker.

19:55 After a break where Plaintiff was alone in the interview

room, Price enters and introduces himself.

21:12 Plaintiff describes how he was taken to a “detox tank” by a

nurse and sergeant Rucker.

33:20 Rucker had brought the wrong size jumpsuit.

33:37 Purser and Rucker started taking off Plaintiff’s jumpsuit;

others were observing.

34:15 Plaintiff’s underwear came down to around mid-thigh;

Plaintiff had to pull his underwear back up.

35:40 Plaintiff denies that the officers reached out and held his

penis; he is “not accusing the man of that.”

36:24 Plaintiff says that Rucker did not go back towards Plaintiff

once his underwear were down.

36:45 Plaintiff just wants Rucker to recognize that Plaintiff is a

citizen and that he has rights.

38:38 Plaintiff says that Rucker applied excessive force by

touching his “junk” with a woman standing there.

41:10 Plaintiff just wants officers to “act right” and treat him right.

45:17 The original two officers reenter and converse with Plaintiff.

49:45 Plaintiff is wheeled out of the interview room.

[Doc. 70: Ex. R-1].

IV. DISCUSSION

A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) requires a prisoner to

exhaust his administrative remedies before filing a § 1983 action. 42 U.S.C.

§ 1997e(a). The PLRA provides, in pertinent part, that “[n]o action shall be

brought with respect to prison conditions under section 1983 of this title, or

any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

exhausted.” Id. In Porter v. Nussle, the Supreme Court held that the PLRA’s

exhaustion requirement applies to all inmate suits about prison life. 534 U.S.

516, 532 (2002). “There is no question that exhaustion is mandatory under

the PLRA and that unexhausted claims cannot be brought in court.” Jones v.

Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at 524). Because

exhaustion of administrative remedies is an affirmative defense, defendants

have the burden of pleading and proving lack of exhaustion. Id. at 216.

The Defendants contend that the Plaintiff failed to exhaust his

administrative remedies with regard to the sexual battery claim against

Defendant Purser. However, the Plaintiff has forecast evidence that he

exhausted this claim. [Doc. 84-2 at 45-56: Plaintiff’s Decl. at ¶ 29]. The

Defendants have failed to carry their burden to demonstrate lack of

exhaustion, and summary judgment will be denied on this ground. See

Jones, 549 U.S. at 216.

B. Excessive Force & Sexual Contact

“Due process rights of a pretrial detainee are at least as great as the

Eighth Amendment protections available to the convicted prisoner.” Hill v.

Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (citations omitted). 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 prevail on 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. 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). “Included within this protection is a pre-trial detainee’s

liberty interest to be free from unwanted sexual contact by prison officials.”

Rush v. Bryant, 2021 WL 1608345, at *3 (S.D.W. Va. Feb. 22, 2021); see

Young v. Muncy, 2020 WL 1521799, at *4 (S.D.W. Va. March 30, 2020)

(“Sexual assault is not a legitimate part of a prisoner’s punishment,

particularly ... where Plaintiff is a pretrial detainee....”).

The forecast of evidence demonstrates that, on September 18, 2020,

the Plaintiff’s boxers were unintentionally pulled down partially during the

jumpsuit change; that any contact with Plaintiff’s privates was incidental; and

that Defendant Grooms saw this inadvertent incident. The Plaintiff’s

contention that he was intimidated into changing his story in the UCSO

interview room is conclusively contradicted by the interview video and is

rejected. See Scott, 550 U.S. at 380. The Defendants will, therefore, be

granted summary judgment on this claim.

The forecast of evidence shows that, on December 11, 2020, the

Plaintiff resisted officers when they attempted to search his papers when he

returned from court. He cursed at staff, grabbed a bag of papers that officers

were trying to search, attempted to rise from his wheelchair, attempted to

kick officers, and resisted with his arms; that he continued resisting after

being warned that a taser would be used if he did not stop; and that Martin

administered a short drive stun when the Plaintiff continued trying to kick

staff. The forecast of evidence demonstrates that officers attempted to

resolve the matter verbally and only resorted to force when the Plaintiff

became physically resistant, and that the incident ended as soon as the

Plaintiff was secured in handcuffs and shackles. See, e.g., Kingsley, 576

U.S. at 397 (listing considerations that may bear on the reasonableness of

the force, including the extent of plaintiff’s injury, efforts by the officers to

temper the amount of force used, and whether the plaintiff was actively

resisting). There is no genuine dispute for trial on this incident and summary

judgment will be granted for the Defendants.

The forecast of evidence shows that, on December 14, 2020, the

Plaintiff verbally and physically refused to comply with Defendant Hodgson’s

orders to return to his cell. Hodgson pushed the Plaintiff and he fell,

sustaining a small abrasion on his arm. The Plaintiff was then held on his

bed in a seated position. The Plaintiff has failed to demonstrate the

existence of a genuine dispute of material fact that Hodgson’s actions were

objectively unreasonable in light of the Plaintiff’s recorded verbal and

physical resistance. See, e.g., Kingsley, 576 U.S. at 397. Accordingly, the

Defendants will be granted summary judgment on this claim.

As to Defendant Kiker, the forecast of evidence shows that he was not

involved in the December 11 and 14, 2020 incidents, and that his only

involvement with the incidents underlying the Plaintiff’s claims was when he

helped remove Plaintiff’s second mattress on September 18, 2020. The

Plaintiff’s vague assertions that Kiker “consistently” antagonized and

assaulted him, and that he pushed, verbally assaulted, and threatened the

Plaintiff on an unspecified date fail to demonstrate the existence of a genuine

dispute regarding the claims before the Court. [Doc. 84-2 at 1-4: Plaintiff’s

Decl. at ¶ 6; Doc. 84-2 at 45-56: Plaintiff’s Decl. at ¶ 16]. Accordingly,

summary judgment will be granted for Defendant Kiker.

In sum, the Plaintiff has failed to demonstrate the existence of a

genuine dispute of material fact with regard to his claims of sexual contact

and excessive force. Accordingly, the Defendants’ Motion for Summary

Judgment on these claims will be granted.

C. Deliberate Indifference to a Serious Medical Need

A pretrial detainee’s claim based on deliberate indifference to a serious

medical need is properly brought pursuant to the Fourteenth Amendment.

Short v. Hartman, 87 F.4th 593, 611 (4th Cir. 2023). To prevail on such a

claim, a plaintiff must demonstrate that:

(1) they had a medical condition or injury that posed a substantial

risk of serious harm; (2) the defendant intentionally, knowingly,

or recklessly acted or failed to act to appropriately address the

risk that the condition posed; (3) the defendant knew or should

have known (a) that the detainee had the condition and (b) that

the defendant’s action or inaction posed an unjustifiably high risk

of harm; and (4) as a result, the detainee was harmed.

Id. at 611. Under this standard, “the plaintiff [need not] show that the

defendant had actual knowledge of the detainee’s serious medical condition

and consciously disregarded the risk that their action or failure to act would

result in harm.” Id. “[I]t is enough that the plaintiff show that the defendant

acted or failed to act ‘in the face of an unjustifiably high risk of harm that is

either known or so obvious that it should be known.’” Id. (quoting Farmer v.

Brennan, 511 U.S. 825, 836 (1994)). It is insufficient, however, for the

plaintiff to show that “the defendant negligently or accidentally failed to do

right by the detainee.” Id. at 611-12.

The forecast of evidence demonstrates that the Plaintiff received a

great deal of medication and treatment while he resided at UCJ, including

medical and mental health inquiries that received responses. As to the

Plaintiff’s second mattress, the forecast of evidence demonstrates that it was

a medical provider, and not Nurse Hypes, who revoked the same. Plaintiff’s

disagreement with that decision does not rise to the level of deliberate

indifference. The forecast of evidence also demonstrates that the Plaintiff

was provided walking assistance including a walker and a wheelchair in

accordance with the provider’s orders. Although the Plaintiff may have

preferred a wheelchair at certain times, he has failed to forecast any

evidence of deliberate indifference in this regard. The forecast of evidence

also demonstrates that the Plaintiff was consistently provided medication

during his time at UCJ. He has forecast evidence that Nurse Speer threw

medicine in the Plaintiff’s hand through the food slot once, and that Nurse

Hypes deliberately dropped the Plaintiff’s medicine through the trap slot

once. Accepting this as true, there is no genuine dispute as to the

Defendants’ deliberate indifference because there is no forecast of evidence

that these two isolated incidents posed an unjustifiably high risk of harm, or

that the Plaintiff was harmed as a result. See generally Morgan v. Buncombe

Cnty., No. 1:16-cv-286-FDW, 2016 WL 4585900, at *2 (W.D.N.C. Sept. 1,

2016) (“It is well settled that rudeness and unprofessionalism by prison staff

do not constitute a federal or constitutional violation under Section 1983.”).

Accordingly, the Defendants will be granted summary judgment on the

Plaintiff’s claims of deliberate indifference to a serious medical need.

D. Conditions of Confinement

To prevail on a Fourteenth Amendment claim based on

unconstitutional conditions of confinement, a pretrial detainee must prove

that the action taken was not “‘rationally related to a legitimate nonpunitive

governmental purpose’ or is ‘excessive in relation to that purpose.’” Short v.

Hartman, 87 F.4th 593, 611 (4th Cir. 2023) (quoting Kingsley v. Hendrickson,

576 U.S. 389, 399 (2015)). In other words, a pretrial detainee must only

show that “the defendant’s action or inaction was … objectively

unreasonable” in that the defendant acted or failed to act “in the face of an

unjustifiably high risk of harm that is either known or so obvious that it should

be known.” [Id.] (quoting Farmer v. Brennan, 511 U.S. 825, 836 (1994)).

The forecast of evidence demonstrates that it was Nurse Dozier who

ordered the Plaintiff’s transfer to the THC without a bed frame for his safety,

that Defendants Rucker and Purser carried out this medical directive, and

that Defendant Grooms had nothing to do with that incident. The forecast of

evidence further demonstrates that the THC cell had no toilet, running water,

bed or bedframe, window or natural light; no outside recreation; poor

ventilation; an “inadequate” law library;20 and no privacy curtains on

the shower. The forecast of evidence further shows that the Plaintiff had

one hour out of the cell per day, which he felt was inadequate time to

shower and use the kiosk and phone. Although the Plaintiff was initially

placed in THC because of medical concerns, his time there was extended

due to multiple disciplinary infractions. The undisputed forecast of

evidence further shows that he received due process for these

infractions, although he refused to participate in the December 14, 2020

disciplinary hearing. The Plaintiff has failed to forecast evidence that any

Defendant imposed a condition that was excessive or arbitrary such that it

rose to the level of a prohibited punishment. No jury could reasonably view

the Plaintiff’s placement in the THC as so disproportionate, gratuitous,

or arbitrary that it violated due process. Accordingly, the Defendants’

Motion for Summary Judgment is granted on the Plaintiff’s claims that the

Defendants violated his rights with regard to the conditions of his

confinement.

E. Retaliation

An inmate has a clearly established First Amendment right to be free

from retaliation for filing lawsuits. See Booker v. S.C. Dep’t of Corrs., 855

20 The Plaintiff did not allege, and there is no forecast of evidence, that the Plaintiff was

denied access to the courts.

F.3d 533, 540 (4th Cir. 2017); Thompson v. Commonwealth of Va., 878 F.3d

89, 110 (4th Cir. 2017). Inmates also have a protected First Amendment

right to complain to prison officials about prison conditions and improper

treatment by prison employees that affect them. See Patton v. Kimble, 717

Fed. App’x 271, 272 (4th Cir. 2018).

To prevail on a colorable First Amendment retaliation claim, a plaintiff

must prove that (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) (quotation marks and citation omitted). Retaliation claims brought by

prisoners, however, are treated with skepticism because every act of

discipline by a prison official is retaliatory in that it responds directly to

prisoner misconduct. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).

The forecast of evidence demonstrates that the Plaintiff did not file a

grievance against Grooms before the December 11th incident when Grooms

allegedly retaliated against him, that Grooms never discussed the Plaintiff

with anyone including Rogers, and that neither Rogers, Grooms, nor any

other of Rogers’ subordinates, retaliated against the Plaintiff for any reason.

The Plaintiff has not forecast any evidence of causation between any

protected activity and an adverse action by Grooms or Rogers. Accordingly,

the Defendants’ Motion for Summary Judgment will be granted on the

Plaintiff’s retaliation claims.

F. North Carolina Assault and Battery

When the Complaint passed initial review, the Court exercised

supplemental jurisdiction over the Plaintiff’s North Carolina assault and

battery claims against Defendants Martin, Hodgson, Grooms, Purser, and

Kiker. [See Doc. 20 at 19-20].

Under North Carolina law, “[t]he public immunity doctrine

protects public officials21 from individual liability for negligence in the

performance of their governmental or discretionary duties.” Campbell v.

Anderson, 156 N.C. App. 371, 376, 576 S.E.2d 726, 730 (2003). “A

public official can only be held individually liable for damages when the

conduct complained of is malicious, corrupt, or outside the scope of

official authority.” Hunter v. Transylvania Cty. Dep’t of Soc. Servs., 207

N.C. App. 735, 737, 701 S.E.2d 344, 346 (2010). A public official acts “with

malice when he wantonly does that which a man of reasonable intelligence

would know to be contrary to his duty and which he intends to be prejudicial

or injurious to another.” Grad v.Kaasa, 312 N.C. 310, 313, 321 S.E.2d 888,

21 Under North Carolina law, jailers and assistant jailers are entitled to claim public

official immunity. See Baker v. Smith, 224 N.C. App. 423, 428-30, 737 S.E.2d 144,

148-49 (2012).

890 (1984); see also Bailey v. Kennedy, 349 F.3d 731, 742 (4th Cir.

2003). “An act is wanton when it is done of wicked purpose, or when

done needlessly, manifesting a reckless indifference to the rights of

others.” Grad, 312 N.C. at 313, 321 S.E.2d at

890-91.

The Plaintiff has not forecast any evidence that the Defendants acted

maliciously, corruptly, or outside the scope of their official authority, and his

§ 1983 claims of excessive force and sexual contact were dismissed. The

Plaintiff’s claims of North Carolina assault and battery fail for the same

reasons. The Defendants’ Motion for Summary Judgment is, therefore,

granted as to the Plaintiff’s North Carolina assault and battery claims.

G. Motion to Stay

On August 22, 2024, the Plaintiff filed an “Emergency Notice” in which

states that he is being transferred to Central Prison for emergency

healthcare, and that he is projected to be released from NCDAC on

September 28, 2024.22 [Doc. 95]. He asks the Court to stay this case until

October 28, 2024 because of the transfer, during which his property is going

to be packed and “withheld.”

22 The Plaintiff is reminded to file requests to the Court via “Motions.” [See Doc. 4].

The Plaintiff initiated this case in March 2022 and the Court previously

granted a stay for the Plaintiff to receive, and recover from, surgery. [See

Doc. 47]. After balancing the relevant factors, the Court concludes that a

further stay of this case is not warranted at this time. The Defendants’ Motion

for Summary Judgment is ripe, and the Plaintiff has failed to justify a stay of

this matter by clear and convincing evidence. Nor is a further stay in the

interest of judicial economy. Accordingly, the Plaintiff’s request to stay this

case is denied.

V. CONCLUSION

For the reasons stated herein, the Defendants’ Motion for Summary

Judgment is granted, and this action is dismissed with prejudice. The

Plaintiff’s request to stay this case is denied.

ORDER

IT IS, THEREFORE, ORDERED that the Defendants’ Motion for

Summary Judgment [Doc. 64] is GRANTED, and this action is DISMISSED

WITH PREJUDICE.

IT IS FURTHER ORDERED that the Plaintiff’s “Emergency Notice”

[Doc. 95] is construed as a Motion to Stay and is DENIED.

The Clerk is respectfully instructed to update the record as follows:

note that the Plaintiff is also known as (a/k/a) Nafis A. Malik; replace “FNU

Grooms” with Ashley Grooms, formerly known as (f/k/a) Ashley Fultz;

replace “FNU Hodgens” with Tim Hodgson; replace “FNU Kiker” with

Cody Kiker; replace “Pam LNU” with Pam Hypes; replace “K. Martin”

with Kelly Martin; replace “FNU Philmore” with Jonathan Philemon;

replace “FNU Pursor” with Bradley Purser; replace “D. Rogers” with Dan

Rogers; replace “FNU Rucker” with Dana Rucker; and replace “FNU Speer”

with F. Speer.

ITIS SO ORDERED. | September 12, 2024

Martiff Reidinger ee

Chief United States District Judge AS

35