Dale v. North Carolina Department of Public Safety

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:22-cv-00259-MR

DAMETRI DALE, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

NORTH CAROLINA DEPARTMENT )

OF PUBLIC SAFETY, et al., )

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on the Motions for Summary

Judgment filed by the pro se Plaintiff [Doc. 37] and by the Defendants Eris

Allen, Robert Campbell, and Brandon Orders [Doc. 52].

I. BACKGROUND

On November 18, 2022, the incarcerated Plaintiff Dametri Dale,

proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983 addressing

incidents that allegedly occurred at the Foothills Correctional Institution.1

The unverified Complaint [Doc. 1: Compl.] passed initial review against

Defendants Eris Allen, Robert Campbell, and Brandon Orders for the use of

excessive force/failure to intervene, and the Court exercised supplemental

1 The Plaintiff is presently incarcerated at the Scotland Correctional Institution.

jurisdiction over a state law assault claim against Defendant Campbell.2

[Doc. 11: Order on Initial Review]. The Plaintiff seeks damages and a

declaratory judgment. [Doc. 1 at 13: Compl.].

The Plaintiff filed a verified Motion for Summary Judgment [Doc. 37: P.

MSJ] and supporting exhibits [Doc. 39: P. MSJ Ex.].3 The Defendants filed

a Motion for Summary Judgment [Doc. 52: D. MSJ] and exhibits opposing

the Plaintiff’s Motion for Summary Judgment and supporting their own

Motion. [Doc. 53: D. MSJ Ex.]. 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

Defendants’ summary judgment Motion and of the manner in which evidence

could be submitted to the Court. [Doc. 56: Roseboro Order]. The Plaintiff

filed a verified Response [Doc. 70: P. MSJ Resp.],4 and the Defendants filed

2 An unverified Amended Complaint seeking to present additional claims did not pass

initial review. [See Docs. 16: Am. Compl; Doc. 18: Order on Initial Rev. of Am. Compl.].

3 To the extent that the Plaintiff attempts to assert claims that are new, or that did not pass

initial review, these are not properly before the Court and they require no separate

discussion. See generally Fed. R. Civ. P. 15(a) (discussing amendment); [see, e.g., Doc.

37 at 10-11 (alleging that the use of full restraints for behavior management and for mental

health management violates prison policy); id. at 21 (arguing that “other staff not named

in this suit are liable due to their failures to intervene….”)]. The Plaintiff’s Motion is moot

insofar as it raises evidentiary issues that have been resolved and which do not warrant

the imposition of sanctions. [See Doc. 37 at 22-23 (arguing spoliation); see also Doc. 62:

“Motion to Direct Defendants to File Video Evidence;” Doc. 68: Order].

4 Claims raised in the Response that are not properly before the Court are dismissed

without separate discussion. See Note 3, supra; [see, e.g., Doc. 70 at 4-5 (alleging that

a Reply [Doc. 71: D. MSJ Reply]. Having been fully briefed, these matters

are 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

medical did not fully evaluate the Plaintiff on November 11, and ignored his complaints of

neck and shoulder pain)].

is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not

rely upon mere allegations or denials of allegations in his pleadings to defeat

a motion for summary judgment. Id. at 324. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations …, admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, the

nonmoving party must present sufficient evidence from which “a reasonable

jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at

248. To that end, only evidence admissible at trial may be considered by the

Court on summary judgment. Kennedy v. Joy Technologies, Inc., 269 F.

App’x 302, 308 (4th Cir. 2008) (citation omitted).

When ruling on a summary judgment motion, a court must view the

evidence and any inferences from the evidence in the light most favorable to

the nonmoving party. Anderson, 477 U.S. at 255. Facts, however, “must be

viewed in the light most favorable to the nonmoving party only if there is a

‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380

(2007). As the Supreme Court has emphasized,

“[w]hen the moving party has carried its burden under

Rule 56(c), the opponent must do more than simply

show there is some metaphysical doubt as to the

material facts …. Where the record taken as a whole

could not lead a rational trier of fact to find for the

nonmoving party, there is no ‘genuine issue for trial.’”

Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 586-87, 106 S. Ct. 1348 (1986)

(footnote omitted). “[T]he mere existence of some

alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be

no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-28, 106 S. Ct.

2505 (1986). When opposing parties tell two

different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version

of the facts for purposes of ruling on a motion for

summary judgment.

Scott, 550 U.S. at 380.

III. FACTUAL BACKGROUND

The parties’ forecasts of evidence show the following, which is

undisputed except as otherwise noted.

On October 18, 2022, Correctional Officer Eris Allen was removing the

Plaintiff’s hand restraints after an escort. [Doc. 53-2: Allen Decl. at ¶ 3]. The

Plaintiff yanked the hand restraints away, pulled Allen’s hand into the food

port, and broke Allen’s cuff key. [Id.]. The Plaintiff pulled the hand restraints

into his cell, began threatening staff, and refused to return the restraints,

stating “Y’all bring ya ass in here and get them.” [Id.]. Sergeant Orders

responded to the cell and ordered the Plaintiff to place his hands through the

trap to have the restraints removed. [Doc. 53-3: Orders Decl. at ¶ 3]. The

Plaintiff refused. [Id.]. The officer in charge (“OIC”) responded to the cell

and the restraints were removed without further incident. [Id.]. The Plaintiff

refused to be photographed or to be seen by medical. [Id.]. Sergeant Orders

determined that the Plaintiff should be charged with disciplinary infractions

for assault on staff (A03), tampering with a locking device (B03), and using

profane language (B24). [Id.]. The Plaintiff was convicted of all three

infractions. [See Doc. 53-1: MSJ Ex at 6 (Offender Infractions); Doc. 53-1:

MSJ Ex at 7 (Disciplinary Verdict Appeal/Review)].

On the evening of November 10, 2022, the Plaintiff was placed on self-

injurious precaution (“SIP”)5 after he threatened to kill himself. [Doc. 37: P.

MSJ at 4]. He covered his cell window and refused to submit to restraints.

[Doc. 53-4: MSJ Ex at 4-12 (Incident Report)]. Sergeant Orders prepared a

cell extraction team to prevent Plaintiff from harming himself. [Id.]. The OIC

and Sergeant Orders repeatedly ordered the Plaintiff to submit to restraints;

the Plaintiff refused. [Id.]. The Plaintiff was told that OC spray and an

electronic shield may be used, and all conflict resolution attempts were

exhausted. [Id.]. The food port was lowered and a short burst of OC pepper

spray was directed into the cell. [Id.]. The Plaintiff continued to refuse

5 Also referred to as self-injurious behavior (“SIB”).

restraints, and the team entered the cell. [Id.]. The Plaintiff threw his

mattress and continued resisting so the shield operator applied electronic

control for a total of 10 seconds. [Id.]. The Plaintiff began complying and

was restrained. [Id.].

The Plaintiff was carried to a shower for decontamination. [Doc. 53-3:

MSJ Ex at 8 (Orders’ Witness Statement); Doc. 37: P. MSJ at 4]. After

showering, the Plaintiff was placed in an SIP camera cell in a smock and full

restraints including a black box, waist chain, and connecting chain. [Id.]. A

nurse performed a use of force evaluation. [Doc. 53-1: MSJ Ex at 40-43

(Nov. 10, 2022 Clinical Encounter)]. While the Plaintiff complained that he

could not move his shoulder, no injuries were observed. [Id.].

On November 11, 2022, the Plaintiff asked staff to enter the cell with a

handheld camera and to remove his restraints. [Doc. 37: P. MSJ at 4; Doc.

70: P. MSJ Resp. at 1-2]. Staff refused, which frustrated the Plaintiff, so the

Plaintiff placed a restraint chain around his neck. [Id.; Doc. 37: P. MSJ at 4].

Sergeant Orders and Lieutenant Campbell responded to the Plaintiff’s cell

and the Plaintiff removed the chain from around his neck. [Doc. 37: P. MSJ

at 5; Doc. 53-3: MSJ Ex at 9 (Orders’ Witness Statement); Doc. 53-4:

Campbell’s Decl. at ¶ 4 (adopting Campbell’s Witness Statement); Doc. 53-

4: MSJ Ex at 13 (Campbell’s Dec. 19, 2022 Witness Statement)].

Officers entered the cell and ordered Plaintiff to stand up so that the

chain could be resecured. The Plaintiff ignored orders to stand up. Campbell

grabbed Plaintiff’s arm and pulled Plaintiff to a standing position. Officers

unlocked the middle chain and began to reposition it with less slack, while

Campbell held Plaintiff’s arm. [Doc. 37: P. MSJ at 5; Doc. 53-4: MSJ Ex at

13; Doc. 53-3: MSJ Ex at 9]. The Plaintiff attempted to stand fully erect,

“merely pulling against the chain and tens[ing] his body, not allowing the

chain and locks to be secured.” [Doc. 37: P. MSJ at 5, 12-13; Doc. 70: P.

MSJ Resp. at 3]. Campbell and Orders considered this to be resisting. [Doc.

53-4: MSJ Ex at 13; Doc. 53-3: MSJ Ex at 9]. Campbell secured the Plaintiff’s

upper body with a “chokehold”6 while the Plaintiff was bent over so that staff

could resecure the chain. [Doc. 37: P. MSJ at 5; see Doc. 70: P. MSJ Resp.

at 3 (“headlock”)]. The Plaintiff stated, “I can’t breathe” and Campbell replied,

“if you can talk you can breathe.” [Doc. 37: P. MSJ at 5, 15; Doc. 53-4:

Campbell Decl. at ¶ 4]. Campbell ordered staff to exit the cell when the

Plaintiff became compliant. [Doc. 53-4: Campbell Decl. at ¶ 4]. The Plaintiff

was stepped down out of the restraints later that morning without further

6 Campbell denies this and the video footage is ambiguous. [Doc. 53-4: Campbell Decl.

at ¶ 4]. Therefore, for the purpose of evaluating the forecast of evidence the Court

accepts the Plaintiff’s version of events. See Simmons v. Whitaker, 106 F.4th 379, 386

(4th Cir. 2024) (a video must be viewed in the light most favorable to the nonmovant

unless it blatantly contradicts the nonmovant’s version).

incident. [Doc. 53-4: MSJ Ex at 4-12 (Incident Report); Doc. 37: P. MSJ at

6]. A use of force evaluation was performed 40 minutes after this incident.

[Doc. 53-1 at 47-49]. The Plaintiff declined to answer the nurse’s questions

and no injuries were noted. [Id.].

The Plaintiff was “just another inmate” to Officer Allen, Sergeant

Orders, and Lieutenant Campbell. [Doc. 53-2: Allen Decl. at ¶ 4; Doc. 53-3:

Orders Decl. at ¶ 6; Doc. 53-4: Campbell Decl. at ¶ 5]. They did not have

any feelings of ill-will towards the Plaintiff and never wanted to harm him;

they were merely performing their duties. [Id.; id.; id.].

The Plaintiff completed all three levels of the Administrative Remedy

Procedure (“ARP”) for four grievances during the relevant time, only one of

which addresses the incidents at issue, Grievance No. 3730-2022-EU3A-

19787. [See Doc. 53-1: MSJ Ex at 121 (Inmate Grievance Resolution Board

(“IGRB”) Memo.); see id. at 123 (Grievance No. 3730-2022-EU3A-19787);

see also id. at 130, 192, 196 (grievances addressing misplaced property and

two incidents at Marion CI)]. The Plaintiff filed Grievance -19787 on

November 12, 2022, complaining that Lieutenant Campbell had choked him

on him on November 11. [Id. at 123]. The Step One and Step Two

Responses state that the Plaintiff’s allegations were being investigated in a

separate proceeding and that no further action was needed. [Id. at 125, 127].

The Step Three Response issued on January 23, 2023 finds that staff used

a minimal amount of force necessary to stop the Plaintiff’s injurious behavior

and to ensure compliance with orders, and the issue was considered

resolved. [Id. at 122].

The Plaintiff addressed the October 18 incident in a disciplinary

proceeding. [Doc. 70: P. MSJ Resp. at 6]. He also filed a grievance that

was rejected because the ARP does not allow disciplinary grievances. [Id.].

Video footage from the November 10 and 11 incidents has been filed.7

Handheld camera footage from November 10 depicts the following:8

00:00 Plaintiff can be heard through the cell door stating that his

rights are being violated at the prison.

00:03: Plaintiff is ordered to submit to handcuffs.

01:22 Plaintiff is asked whether he will submit; he does not

respond.

01:27 He is asked “yes or no” regarding handcuffs; he does not

respond.

01:55 Officers back away from the cell door.

7 The Defendants filed video footage in support of their Motion for Summary Judgment,

and they filed additional footage on the Plaintiff’s behalf. [See Doc. 55: Defendants’

Motion to Manually File; Doc. 58: Order; Doc. 62: Plaintiff’s “Motion to Direct…”; Doc. 68:

Order].

8 This video is not time stamped; progress times are noted for reference. [See

00000.MTS AVCHD Video].

03:06 The camera operator walks to a hallway where an

extraction team is preparing; each member states his

name and role in the anticipated extraction.

06:15 The team walks to the Plaintiff’s cell where Sergeant

Orders tells Plaintiff to submit to cuffs.

06:32 Sergeant Orders tells Plaintiff that the shock shield may be

used and it is demonstrated at the cell window.

06:42 Plaintiff can be seen through the cell window standing on

the bunk with a towel over his head, holding his mattress.

06:45 Plaintiff is again ordered to submit to cuffs.

07:30 Orders tells Plaintiff that he will get OC spray if he does not

submit to cuffs, and he asks Plaintiff whether he will submit.

07:50 OC spray is deployed through the food trap.

08:04 Plaintiff is again asked whether he submits.

14:00 Plaintiff is given a “last opportunity” to submit to cuffs.

14:53 The cell door is opened.

15:03 Officers restrain Plaintiff on the bunk with the shield;

Plaintiff struggles and yells “ok, ok,” “stop” and “I’m wet;”

officers say, “quit resisting.”

16:16 Plaintiff is restrained and escorted out of the cell, stating

that the cuffs are tight and that he cannot walk.

16:37 Plaintiff lies on the floor; he is carried to a shower.

35:08 After showering, Plaintiff agrees to submit to cuffs.

38:58 Plaintiff is secured and escorted to a cell.

42:45 Plaintiff is placed in full restraints.

46:58 Plaintiff asks about the connecting chain; Orders explains

that the chain will be placed because Plaintiff is on SIB;

Plaintiff is dressed in a smock and officers exit the cell.

Surveillance video footage from the Plaintiff’s cell on November 11

depicts the following:9

4:54:55 Plaintiff is sitting on the toilet with a chain around his neck.

4:55:00 Plaintiff looks towards the cell door and removes the chain.

4:55:50 The cell door opens and officers enter.

4:56:07 Campbell and another officer lift the Plaintiff to standing.

4:56:29 Officers work on the restraint chain and bend Plaintiff’s

upper body forward; Plaintiff attempts to stand straight.

4:56:33 Campbell pulls Plaintiff’s body forward and holds Plaintiff’s

head down with his forearm across Plaintiff’s neck or head.

4:56:47 Plaintiff is placed on the toilet while he struggles.

4:56:56 Officers continue working on the chain; Campbell’s arm

remains on Plaintiff’s head or neck.

4:57:03 Campbell releases Plaintiff and the officers exit the cell.

4:57:18 The cell door closes. No marks are visible on the Plaintiff

and he does not appear to be in distress; he briefly stands,

then sits back down while examining the chains.

9 The surveillance video footage lacks audio. Surveillance footage from the housing unit

depicts officers approaching and exiting the cell from two angles, but the incidents inside

the cell are not visible, so the footage is not summarized in this section. [See C158 Seg

E3A1 left view; C159 Seg E3A15 right view].

Handheld video footage from November 11 depicts the following:10

00:10 An officer notes that Plaintiff is sitting on the toilet.

00:18 The cell door is opened.

00:29 Campbell orders Plaintiff to stand; Plaintiff says, “for what?”

00:32 Campbell again orders Plaintiff to stand; Plaintiff does not

comply.

00:36 Campbell and another officer lift Plaintiff to standing while

other officers work on the chain.

00:55 Officers bend Plaintiff’s upper body forward and Plaintiff

says, “it’s too fucking tight;” Campbell says, “no it’s not.”

1:01 Campbell pushes Plaintiff’s head forward and restrains his

upper body.

1:15 Officers work on the restraint chain and Campbell orders

Plaintiff to sit down twice; Plaintiff struggles.

1:24 Officers forcibly place Plaintiff on the toilet.

1:29 Plaintiff says, “I can’t breathe;” Campbell says, “if you can

talk you can breathe.”

1:31 Campbell releases the Plaintiff.

1:34 Officers exit the cell and the door is closed.

10 The handheld video footage is not time stamped. [See 00559.MTS AVCHD Video].

Progress times are included for reference.

IV. DISCUSSION

A. Defendants’ Motion for Summary Judgment

1. Exhaustion

The PLRA requires a prisoner to exhaust his or her 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). The

Court ruled that “exhaustion in cases covered by § 1997e(a) is now

mandatory.” Id. at 524 (citation omitted). The Porter Court stressed that,

under the PLRA, exhaustion must take place before the commencement of

the civil action to further the efficient administration of justice. Id.

In Woodford v. Ngo, the Supreme Court held that the PLRA exhaustion

requirement requires “proper” exhaustion: “Administrative law ... requir[es]

proper exhaustion of administrative remedies, which ‘means using all steps

that the agency holds out, and doing so properly (so that the agency

addresses the issues on the merits).’” 548 U.S. 81, 90 (2006) (quoting Pozo

v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Further, “[t]here 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. Once a

defendant presents evidence of a failure to exhaust, the burden of proof

shifts to the inmate to show, by a preponderance of the evidence, either that

exhaustion occurred or that administrative remedies were unavailable.

Graham v. Gentry, 413 F. App’x 660, 663 (4th Cir. 2011).

The North Carolina Department of Adult Corrections (“NCDAC”)11 has

established a three-step procedure governing submission and review of

inmate grievances in its ARP. Moore v. Bennette, 517 F.3d 717, 721 (4th

Cir. 2008). Inmates are required to “properly” exhaust administrative

remedies in accordance with ARP. Woodford, 548 U.S. at 90; Moore, 517

F.3d at 726. An inmate does not exhaust his administrative remedies until

he completes all three steps of the ARP. Moore, 517 F.3d at 726.

The forecast of evidence demonstrates that the Plaintiff did not exhaust

the ARP for the November 10 incident whatsoever.

11 Previously known as the North Carolina Department of Public Safety (“NCDPS”).

With regard to the October 18 incident, the Defendants have forecast

evidence that the Plaintiff failed to complete the three-step ARP regarding

his excessive force claim. That Plaintiff argues that the ARP was unavailable

because a grievance addressing the related disciplinary proceeding was

rejected. However, the dismissal of a grievance addressing disciplinary

matters does not demonstrate that the ARP was unavailable for his

excessive force claim. The Plaintiff’s attempt to raise the issue in a prison

disciplinary proceeding is unavailing because such is not “proper” exhaustion

under the ARP. See Woodford, 548 U.S. at 90; Moore, 517 F.3d at 726.

With regard to the November 11 incident, the forecast of evidence

demonstrates that the Plaintiff did not address Defendant Orders’ alleged

failure to intervene whatsoever, and that the ARP regarding Defendant

Campbell’s alleged use of excessive force was completed after Plaintiff filed

the instant lawsuit. Porter, 534 U.S. at 524. The Plaintiff argues that the

ARP was not “available” to him with regards to the November 11 incident

because a separate investigation of the use of force rendered the ARP a

“dead end.” [Doc. 70: P. MSJ Resp. at 6-7]. The forecast of evidence

demonstrates that the Plaintiff’s grievance was accepted and that he

received a Response at each step. That the Responses acknowledged a

separate use of force investigation did not excuse the Plaintiff from

completing the ARP, even though he apparently felt that such was futile. See

generally Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (noting that the

PLRA exhaustion requirement does not include a futility exception).

The Defendants have conclusively demonstrated a lack of exhaustion

and the Plaintiff has failed to establish the existence of a genuine dispute of

material fact from which a reasonable jury could conclude either that

exhaustion occurred or that the ARP was unavailable. Accordingly, the

Defendants’ Motion for Summary Judgment will be granted for lack of

exhaustion.12

2. 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

12 While dismissal for failure to exhaust administrative remedies is ordinarily without

prejudice. because the Plaintiff has also failed to establish the existence of a genuine

dispute of material fact regarding his underlying claims as discussed infra, the dismissal

will be with prejudice.

(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. Furthermore, 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.

With regard to the October 18 and November 10 incidents, the forecast

of evidence demonstrates that the Defendants used minimal and appropriate

force in responding to the Plaintiff’s self-injurious and resistant behavior, and

that the Defendants lacked a subjectively culpable state of mind. The

Plaintiff’s disagreement with the Defendants’ actions and his belief that the

Defendants failed to adhere to prison policy are unavailing. See generally

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

(holding that “prison officials’ failure to follow internal prison policies are not

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

of constitutional violation”).

With regard to the November 11 incident, the forecast of evidence

construed in the light most favorable to the Plaintiff establishes that

Defendant Campbell placed the Plaintiff in a headlock for 30 seconds. The

forecast of evidence further demonstrates that this brief use of force was

necessitated by the Plaintiff’s admitted self-injurious behavior, repeated

refusal to comply with orders, and physical resistance; that Campbell

released the Plaintiff within three seconds of the Plaintiff stating that he could

not breathe; that officers ceased using force altogether once Plaintiff was

secured; and that the Plaintiff sustained no physical injuries. The Court

concludes that no reasonable jury could find, under these circumstances,

that the force employed by officers on November 11 was excessive. See,

e.g., Allen v. City of Dunn, 708 F.Supp.3d 743, (E.D.N.C. Dec. 27, 2023)

(police officers’ use of a headlock while attempting to arrest a motorist was

reasonable where the motorist started a verbal confrontation, physically

assaulted an officer, and resisted arrest until he was subdued and

handcuffed); Whiteside v. White, 1:16-cv-288-FDW, 2018 WL 893775

(W.D.N.C. Feb. 14, 2018) (granting summary judgment for officer who used

a mandibular angle control hold to stop an inmate fight); Housley v. Holquist,

879 F.Supp.2d 472, 481 n.8 (D.Md. Aug. 30, 2011) (granting summary

judgment for officers who used a chokehold to extract a woman from her

residence for an emergency psychiatric evaluation where the force was de

minimis, the hold lasted no more than a few seconds, and there were no

lasting injuries).

Because the Plaintiff has failed to demonstrate the existence of a

genuine dispute of material fact regarding the Defendants’ use of excessive

force, his failure to intervene claims likewise fail. See Hinkle v. City of

Clarksburg, W.Va., 81 F.3d 416, 20 (4th Cir. 1996) (absent any underlying

use of excessive force, there can be no bystander liability).

The Plaintiff has failed to demonstrate the existence of a genuine

dispute of material fact as to the Defendants’ use of excessive force and

failure to intervene and, accordingly, Defendants’ Motion for Summary

Judgment will be granted.

3. 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).

As discussed supra, the Plaintiff has not presented a forecast of

evidence that the Defendants violated his constitutional rights. It is not

clearly established that the use of force, including a brief chokehold, to bring

a self-injurious and physically resistant inmate into compliance with officers’

orders is excessive. See, e.g., Allen v. City of Dunn, 708 F. Supp. 3d 743,

756 (E.D.N.C. 2023) (noting that “[n]o Fourth Circuit authority holds the use

of a headlock on a resisting suspect unreasonable, and numerous cases

from other courts hold to the contrary”) (collecting cases). As such, summary

judgment for the Defendants would also be proper on this ground.

4. North Carolina Assault and Battery

On initial review, the Court exercised supplemental jurisdiction over the

Plaintiff’s North Carolina assault and battery claims that were based on the

same incidents as the § 1983 excessive force claim that passed initial review.

[See Doc. 11: Order on Initial Review at 8].

As discussed supra, the Plaintiff’s § 1983 excessive force claims have

been dismissed. The Plaintiff’s North Carolina claims that are based on the

same conduct likewise fail. See, e.g., Njang v. Montgomery Cnty., Md., 279

F. App’x 209, 216 (4th Cir. 2008) (recognizing that “the jurisprudence

governing Fourth Amendment excessive force actions also controls a party’s

actions for battery and gross negligence”); Wilcoxson v. Painter, 2016 WL

866327, at *10 (E.D.N.C. March 3, 2016) (“[w]here a law enforcement

officer’s use of force was reasonable for the purposes of finding qualified

immunity to a § 1983 excessive force claim, it is fatal to the Plaintiff’s state

law tort claims”). Accordingly, the Defendants’ Motion for Summary

Judgment is granted on the Plaintiff’s North Carolina claims.

B. Plaintiff’s Motion for Summary Judgment

The Plaintiff moves for summary judgment with respect to his

excessive force and assault and battery claims. [Doc. 37]. For the reasons

articulated in the Court’s analysis for the Defendants’ Motion for Summary

Judgment, the Plaintiff’s Motion for Summary Judgment is denied.

IV. CONCLUSION

For the reasons stated herein, the Plaintiff’s Motion for Summary

Judgment is denied, the Defendants’ Motion for Summary Judgment is

granted, and this matter is dismissed with prejudice.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The Defendants’ Motion for Summary Judgment [Doc. 52] is

GRANTED and this action is DISMISSED WITH PREJUDICE.

2. The Plaintiff’s Motion for Summary Judgment [Doc. 37] is

DENIED.

The Clerk of Court is respectfully directed to enter a Judgment

consistent with this Memorandum of Decision and Order

contemporaneously herewith and to close this civil case.

IT IS SO ORDERED.

Signed: February 3, 2025

= wi

< Reidinger ey

Chief United States District Judge “lly

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