Hendon v. Hayes

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:24-cv-173-GCM

VALCHIC WENDELL HENDON, )

)

Plaintiff, )

)

vs. ) ORDER

)

CHASE HAYES, et al., )

)

Defendants. )

___________________________________ )

THIS MATTER is before the Court on Defendants Chase Hayes and Evan Smith’s Motion

to Dismiss [Doc. 23].1

I. PROCEDURAL BACKGROUND

The pro se Plaintiff filed the unverified Complaint pursuant to 42 U.S.C. § 1983 addressing

the circumstances of his May 30, 2023 arrest in Buncombe County.2 [Doc. 1]. The unverified

Amended Complaint passed initial review against Asheville Police Department (“APD”) Officers

Hayes and Smith for the use of excessive force, and the remaining claims were dismissed without

prejudice.3 [Docs. 13, 21].

Defendants Hayes and Smith were served and filed a Motion to Dismiss pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure. [Doc. 23]. In support of their Motion, the

Defendants submitted a memorandum, and materials including video footage from both

1 The Clerk will be instructed to update the record with the Defendants’ full names.

2 The Plaintiff’s present address of record is at the Swain County Jail.

3 The Amended Complaint also passed initial review against Defendants Baker and Cramer, however, the action was

dismissed as to them for lack of prosecution. [Doc. 33].

Defendant’s body worn cameras (“BWC”), and the Declaration of Jimmy Wingo attesting to the

authenticity of the BWC video footage. [Doc. 23]. On May 27, 2025, the Court entered an Order

in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). [Doc. 24]. The Court

advised the Plaintiff that it may treat Defendants’ Motion to Dismiss as a Motion for Summary

Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure because the Motion is

supported by materials other than the pleadings. [Id.]. The Court further advised Plaintiff of the

requirements for filing a response to a summary judgment motion and of the manner in which

evidence may be submitted to the Court. [Id.]. Finally, the Court advised Plaintiff that he may

seek to conduct discovery under Rule 56(d) if necessary to present evidence in opposition to the

Defendants’ Motion. [Id.].

The Plaintiff sought the production of video footage to oppose the Defendants’ Motion,

however, this was denied as moot because the Plaintiff already appeared to be in possession of the

footage and, in any event, the Defendants had provided him with another copy of the footage with

their Motion. [Doc. 31]. The Court did, however, grant Plaintiff additional time in which to file a

response in an Order entered on June 30, 2025.4 [Id.]. The Plaintiff has not responded to the

Defendants’ Motion and the time to do so has expired. This matter is now ripe for disposition.

II. STANDARD OF REVIEW

The Fourth Circuit “has cautioned that district courts should not consider summary

judgment motions where the nonmoving party has not had an opportunity to discover information

essential to its opposition.” Farabee v. Gardella, 131 F.4th 185, 192-93 (4th Cir. 2025) (citing

Shaw v. Foreman, 59 F.4th 121, 128-29 (4th Cir. 2023)). Here, the Plaintiff has been provided

4 The Plaintiff filed a Notice of Change of Address dated July 9, 2023, which was docketed on July 18, 2025. [Doc.

32]. On August 5, 2025, the Court mailed the Plaintiff another copy of the June 30 Order at his new address, in an

abundance of caution.

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with the video footage at issue and he has not challenged the authenticity of the same, and there is

no “potential need for discovery” of which this Court is aware. Farabee, 131 F.4th at 196 (citing

Pledger v. Lynch, 5 F.4th 511, 526 (4th Cir. 2021)). The Defendants’ Motion to Dismiss will,

therefore, be treated as a Motion for Summary Judgment.5

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is material only if it might affect the outcome of the suit under governing law. Id.

The movant has the “initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving

party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.

The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings

to defeat a motion for summary judgment. Id. at 324. Rather, the nonmoving party must oppose

a proper summary judgment motion with citation to “depositions, documents, electronically stored

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

5 The Court could also consider the video footage under Rule 12(b)(6). See Doriety for Est. of Crenshaw v. Sletten,

109 F.4th 670, 679-80 (4th Cir. 2024) (“a district court can consider a video submitted at the motion to dismiss stage

when (1) the video is ‘integral’ to the complaint and its authenticity is not challenged, but (2) only to the extent that

the video ‘clearly depicts a set of facts contrary to those alleged in the complaint,’ or ‘blatantly contradicts’ the

plaintiff’s allegations, rendering the plaintiff’s allegations implausible.”) (citation omitted).

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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. To be sure, “at the summary judgment stage, video evidence can only

discredit a nonmovant’s factual assertions if the video ‘blatantly’ contradicts the nonmovant’s

position.” Simmons v. Whitaker, 106 F.4th 379, 385 (4th Cir. 2024) (citing Iko v. Shreve, 535

F.3d 225, 230 (4th Cir. 2008)).

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III. FACTUAL BACKGROUND

The forecast of evidence, taken in the light most favorable to the Plaintiff as the non-

moving party, shows the following.6

At approximately 2:21 AM on May 30, 2023, Officer Hayes conducted a traffic stop of the

vehicle in which Plaintiff was the rear seat passenger. [Hayes BWC at 2:21:28]. The vehicles

stopped at a gas station and the Plaintiff immediately opened the rear driver-side door; Hayes

ordered the Plaintiff, repeatedly, to close the car door. [Id. at 2:21:32]. The Plaintiff asked “why?”

and failed to comply. [Id. at 2:21:41]. Hayes explained that the vehicle did not have any tag lights,

and that he would approach and discuss the matter with Plaintiff, however, the Plaintiff continued

to refuse to close the car door despite at least six orders to do so. [Id. at 2:22:11].

Hayes exited his vehicle and approached the Plaintiff with his weapon in one hand and a

flashlight in the other. [Id. at 2:22:21]. Hayes arrived at the open car door and shined his flashlight

into the vehicle. Plaintiff said “man, what the [expletive] is you doing?” and Hayes replied that he

was trying to figure out why Plaintiff had his door open. [Id. at 2:22:34]. Hayes then ordered the

Plaintiff to step out of the car at least 12 times, and the Plaintiff did not comply. [Id. at 2:22:42].

Hayes reached towards the Plaintiff, who gestured angrily and yelled that Hayes had “better get

the [expletive] out of [Plaintiff’s] face,” and had “better not touch [him],” as additional officers

responded to the scene [Id. at 2:22:57, 2:23:04, 2:23:29]. Hayes also repeatedly told the Plaintiff

to “stop hiding [his] hands,” which were not constantly visible. [Id. at 2:23:46]. Officer Smith

parked at the gas station and ran up to the car while Plaintiff was still inside the vehicle’s back

6 The forecast of evidence consists entirely of the Defendants’ video footage. Even if the Plaintiff had submitted his

Amended Complaint under penalty of perjury or otherwise responded to the Defendants’ Motion with sworn

testimony, his allegations are blatantly contradicted by the video evidence and would be disregarded in any event. See

Scott, 550 U.S. at 380; Simmons, 106 F.4th at 385; Doriety, 109 F.4th at 679-80.

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seat, arguing with Hayes. [Smith BWC at 2:23:46]. Hayes warned the Plaintiff that “I’m about to

get you out of this car.” [Hayes BWC at 2:23:49].

Officers including Hayes and Smith pulled Plaintiff out of the vehicle and onto the paved

ground. [Hayes, Smith BWCs at 2:24:13]. Hayes, Smith, and other officers attempted to apply

handcuffs, which the Plaintiff resisted by jerking his body and pulling a hand free. [Hayes BWC

at 2:24:16]. Officers ordered Plaintiff to stop resisting and continued attempting to apply

handcuffs. [Hayes, Smith BWCs at 2:24:22, 2:24:36]. During the struggle on the ground, an

officer7 crouching by the Plaintiff’s head leaned forward, briefly blocking the view of Plaintiff’s

head with his leg. [Id. at 2:24:47]. The officer shifted away and Plaintiff’s head came back into

view three seconds later. [Id. at 2:24:50]. Officers secured the Plaintiff in handcuffs and rolled him

onto his side so that he could breathe. [Id. at 2:25:06].

Plaintiff cursed, kicked at Smith, rolled onto his back, and continuously yelled at officers

to inter alia “get [their] hand off of [him]….” [Smith BWC at 2:24:20]. Smith and other officers

maintained Plaintiff on his side while Hayes spoke to the driver and searched the vehicle. [Id. at

2:25:28]. At approximately 2:27, officers lifted Plaintiff to a seated position on the pavement as

he continued yelling, cursing, and resisting. [Id. at 2:27:49; 2:31:52; 2:33:48; 2:39:05; 2:39:24;

2:40:15]. At approximately 2:33, the Plaintiff complained that the officers were hurting him,

saying “I told you, these cuffs are too [expletive] tight.” [Id. at 2:33:01].

EMS arrived and the Plaintiff asked to sit up to talk to the responders, which he was

permitted to do. [Id. at 2:44:00]. Plaintiff explained that he had “resisted arrest” because there was

no reason to arrest him, and because the officers were white. [Id. at 2:49:28; 2:59:35]. The

Plaintiff’s handcuffs are clearly visible during this exchange, including a gap between the bracelet

7 This appears to be Cramer, who is no longer a defendant in this action.

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and Plaintiff’s wrist. [Id. at 2:59:22]. The Plaintiff was assisted to his feet and he was allowed to

converse privately with an EMS responder a short distance from officers. [Id. at 2:51:29; 3:05:20].

The EMS responder announced that the Plaintiff was going to come with him. The EMS responder,

Plaintiff, and an officer walked to an ambulance parked nearby, and the Plaintiff climbed inside.

[Id. at 3:23:09; 3:23:30; 3:23:53]. The Plaintiff continued yelling in the back of the ambulance and

he physically resisted when officers performed searched him so that he could be transported to the

hospital. [Smith BWC at 3:26:38; Hayes BWC at 3:28:42]. Throughout this interaction, the

Plaintiff had no visible injuries.

IV. DISCUSSION

1. Excessive Force

A claim that a police officer employed excessive force during the course of an arrest,

investigatory stop, or other seizure is analyzed under the Fourth Amendment's “objective

reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989); Quinn v. Zerkle, 111

F.4th 281, 296 (4th Cir. 2024); Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

“[P]olice officers are constitutionally permitted to use only that force which is reasonable under

the circumstances.” Hupp v. Cook, 931 F.3d 307, 321 (4th Cir. 2019). “The ‘reasonableness’ of a

particular use of force must be judged from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396; see also Kingsley v.

Hendrickson, 576 U.S. 389, 399 (2015) (“[A] court must judge the reasonableness of the force

used from the perspective and with the knowledge of the defendant officer”); Saucier v. Katz, 533

U.S. 194, 207 (2001) (“Excessive force claims ... are evaluated for objective reasonableness based

upon the information the officers had when the conduct occurred”), abrogated on other grounds

by Pearson v. Callahan, 555 U.S. 223 (2009).

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Under Graham, courts consider the following factors: “[1] the severity of the crime at issue,

[2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3]

whether he is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396.

These factors are not “exclusive,” and courts may identify other “objective circumstances

potentially relevant to a determination of excessive force.” Kingsley, 576 U.S. at 397. For example,

the Court may consider “[t]he relationship between the need for the use of force and the amount

of force used; the extent of the plaintiff’s injury; [and] any effort made by the officer to temper or

to limit the amount of force.” Id. “Ultimately, [the court] must decide whether the totality of the

circumstances justifie[d] a particular sort of ... seizure.” Hupp, 931 F.3d at 322.

The Fourth Circuit recognizes a cause of action for bystander liability that is “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 complains that: Hayes grabbed Plaintiff while simultaneously asking him to

get out of the car, without justification; officers brought Plaintiff to his feet then “slammed” him

to the ground; an officer put his knee to the back of Plaintiff’s head, “us[ing] this position as

leverage pushing [Plaintiff’s] face into the pavement while pulling his arms up;” officers refused

to loosen Plaintiff’s handcuffs because he had fought officers putting them on; Plaintiff was held

down on the pavement for more than 30 minutes despite Plaintiff’s requests to be brought to his

feet and for officers to stop touching him; and EMS took Plaintiff to the hospital where he received

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treatment for head and groin trauma. [Id. at 5-6, 12].

From the forecast of evidence here, no reasonable jury could conclude that Defendants

Hayes and Smith used excessive force on the Plaintiff or that they failed to protect the Plaintiff

from harm. Rather, a reasonable jury could conclude that the Plaintiff refused numerous lawful

orders and that the Defendants used the minimal necessary force to remove the Plaintiff from the

vehicle, restrain him, and monitor him until he could be safely transported to the hospital. It was

objectively reasonable for officers to pull Plaintiff out of his vehicle after he ignored repeated

lawful requests to close his car door, keep both hands in view, and step out of the car, and became

increasingly combative. See, e.g., Masterson v. Grant, 467 F.App’x 171 (4th Cir. 2012) (granting

summary judgment for police officer where the plaintiff conceded that she resisted arrest during a

traffic stop). The Plaintiff’s contention that officers brought him to his feet then slammed him to

the ground is blatantly contradicted by the video footage. See Simmons, 106 F.4th at 385. The

footage also conclusively demonstrates that neither Hayes nor Smith ever placed a knee on the

back of Plaintiff’s head. The only officer whose leg came close to the Plaintiffs head is not

presently a defendant in this case. Moreover, that officer’s leg contacted Plaintiff’s upper body, if

at all, for no more than three seconds while the Plaintiff was actively resisting officers’ attempts

to handcuff him. Even if this use of force were excessive, which it was not, there is no forecast of

evidence of any serious risk of harm to the Plaintiff or that Defendants Hayes and Smith failed to

do right by him. See Short, 87 F.4th at 611. The Plaintiff’s contention that the handcuffs were

excessively tight is also contradicted by the video footage and, in any event, it was objectively

reasonable for officers to securely restrain the combative Plaintiff with handcuffs until EMS

arrived on the scene a short time later. See generally Brown v. Gilmore, 238 F.3d 362, 369 (4th

Cir. 2002) (“handcuffing … rarely constitute[s] excessive force where the officers were justified

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… in effecting the underlying arrest”); see, e.g., Johnston v. Hefner, 2025 WL 2417760 (W.D.N.C.

July 16, 2025) (it was apparent from the BWC footage that the arrestee was handcuffed in a

“normal, standard, way”). That the Plaintiff was restrained on the ground by officers who kept

their hands on him, despite his preference to stand and not to be touched by officers, does not

amount to excessive force. See, e.g., Dickerson v. Duncan, 2020 WL 86456, at *3 (W.D. Va. Jan.

7, 2020) (“merely physically touching an arrestee does not constitute excessive force”). The Court

concludes that there is no genuine issue for trial and that this action is frivolous. The Court will,

therefore, grant Defendants’ motion for summary judgment and dismiss this action with prejudice.

2. 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. As such, summary judgment for the Defendants

would also be proper on this ground.

V. CONCLUSION

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For the foregoing reasons, the Defendants’ Motion to Dismiss is treated as a Motion for

Summary Judgment, the Motion is granted, and this action is dismissed with prejudice as

frivolous.®

ORDER

IT IS, THEREFORE, ORDERED that the Defendants’ Motion to Dismiss [Doc. 23] is

construed as a Motion for Summary Judgment, it is GRANTED, and this action is DISMISSED

WITH PREJUDICE AS FRIVOLOUS.

The Clerk is respectfully instructed to replace “FNU Smith” with Evan Smith and “FNU

Hayes” with Chase Hayes in the Court’s record.

The Clerk is further instructed to enter a Clerk’s Judgment and close this case.

IT IS SO ORDERED.

Signed: August 29, 2025

Graham C. Mullen ee

United States District Judge mt

8 The Defendants’ Motion to Dismiss the Amended Complaint also would have been granted pursuant to Rule 12(b)(6).

1]