# JACKSON v. OXENDINE

> District Court, M.D. North Carolina · August 15, 2025

URL: https://www.frixlaw.com/law-library/cases/11138024

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 15, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11138024

## How later opinions describe it (automated extraction)

- explaining “unsubstantiated allegations and bald assertions” cannot defeat a motion for summary judgment
- stating that “[a] document filed pro se is to be liberally construed” and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers” (cleaned up)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ALBERT JACKSON, )
)
Plaintiff, )
v. ) 1:23CV411
)
JUSTIN OXENDINE et al., )
)
Defendants. )

ORDER AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on two motions: (1) Defendants’ Motion for Summary
Judgment (Docket Entry 32) and an accompanying Motion to Seal (Docket Entry 35).
Plaintiff has filed a Brief in Response to Defendants’ Motion for Summary Judgment (Docket
Entry 38) and Defendants have filed a Reply thereto (Docket Entry 43). All matters are ripe
for disposition. For the following reasons, the undersigned orders that the Motion to Seal is
granted and recommends that Defendants’ Motion for Summary Judgment should be granted.
I. BACKGROUND
On May 17, 2023, Plaintiff Albert Jackson (“Plaintiff”), prisoner of the State of North
Carolina then incarcerated at Marion Correctional Institution,1 filed a pro se Complaint
(Complaint (“Compl.”) Docket Entry 2), and was permitted, with conditions, to proceed in
forma pauperis. (Docket Entry 3; see also Docket Entry 1.) Plaintiff filed the Complaint pursuant
to 42 U.S.C. § 1983 (“Section 1983”) alleging excessive force in violation of his Eighth

1 Plaintiff has since relocated to Alexander Correctional Institution. (Docket Entry 42.)
Amendment rights by Defendants Justin Oxendine (“Oxendine”), Wilbert Walker (“Walker”),
Steven Gibson (“Gibson”), Marcus Scott (“Scott”), Patricia Holmes (“Holmes”), Jeffrey Hunt
(“Hunt”), and Ronald Covington (“Covington”). (Compl. at 3-4, 6.)2 Plaintiff sues all

Defendants in both their individual and official capacities. (Id.)
Plaintiff’s claims arise out of allegations that, while he was incarcerated at Scotland
Correctional Institution (“SCI”), he was “assaulted 5 times in a series of events on the days of
7-27-22 and 7-28-22.” (Id. at 7, 12, 13.)3 Plaintiff alleges that he was
beaten and assaulted over the course of two day [sic] in a row by [Oxendine, Walker,
Gibson, and Hunt]. [Covington] participated in the assault [and] organized assaults
and witness [sic] as well. [Scott] organized and witness [sic] me being assaulted and
so did [Holmes]. Also officer bush [sic], officer McMillian both witness assault and/or
knew about them before they happened and SPG Sergent [sic] Betha witness and
knew about assault before and while they happen and even assisted in a [sic] assault.

… I received a painfull [sic] back injury in which I had to undergo multiple back X-
ray [sic] that led to “perminate” [sic] pain and a doctor ordering me pain medication.
I received a … perminate [sic] injury to my jaw and now have “T.M.J. athritis” [sic]
according to doctor. I have received a busted blood vessel to right eye that led to
“perminate” [sic] slight loss of clear vision in right eye and had to be ordered to
wear perminate [sic] glassed [sic] to improve sight. I also recied [sic] nose injury,
two black eyes, a split lip, a split eye brow [sic], a split head, a [sic] injured elbow,
and multiple bruises and open wound all over body and a chess [sic] injury[.]

(Id. at 13.)
First, Plaintiff alleges that on July 27, 2022, around 9:50 a.m. (“Incident One”), Walker
and Gibson “both beat me and assaulted me while in handcuff in a of [sic] camera location in

2 All citations herein to documents filed with the court refer to the page numbers located at
the bottom right-hand corner of the documents as they appear on CM/ECF. The Complaint
incorrectly listed Ronald Covington as Robert Covington. (Docket Entry 32 at 1.)

3 Quotations are written as they appear within the source document, and obvious errors are
marked with [sic]; however, some capitalizations have been changed to improve readability. The
undersigned notes that Plaintiff’s filings are illegible in some areas where they appear to be cut off at
the bottom margin of the page. (See, e.g., Compl. at 7, 13; Docket Entry 38 at 1.)
intake shower room by choking, kicking, punching, elbowing, and spraying me with O/C spray
and tasering[4] me while in hand cuffs.” (Id. at 7, 9, 13.) He further alleges that “Walker and …
Gibson both beat me before exiting the shower room.” (Id. at 7.) Plaintiff alleges that “Holmes

also stood to witness me be assaulted by … Oxendine … at the time I was assaulted of [sic]
camera in a [sic] intake shower cell.” (Id. at 8.) Plaintiff alleges that “Covington witness [sic] the
assault as he allowed … Oxendine into the shower room and … Covington was in fact the
(officer in charge) captain on the shift, outranking all the other officers on duty.” (Id.)
Second, Plaintiff alleges that on July 27, 2022, around 11:00 a.m. (“Incident Two”),
Oxendine “can be seen on video footage acting in rage and displaying extreme anger toward

me by punching and hitting the holding cage” Plaintiff was in. (Id. at 7, 9, 13.) Plaintiff alleges
Oxendine opened “the cage without allowing or ordering me to submit to handcuff in attempt
to create a physical altercation by getting in my face and pointing in my face while threatening
me and instructing officer to bring me up front to be assaulted off camera by him.” (Id.)
Plaintiff goes on to allege that “[m]inutes later I was taken to a [sic] off camera location to be
assaulted and beaten very badly.” (Id. at 7) Plaintiff alleges that “Scott also stood outside the

door area” during this assault. (Id. at 8.) He also alleges that “Scott looked and watched”
while Holmes “also threatened me and made attempts to approach my holding cell” at this
time. (Id. at 8, 9.) Plaintiff alleges that while “Holmes was threatening me and encouraging
… Oxendine to assault me, she had to be pulled off the unit and restrained at the time she

4 “ ‘OC’ is an abbreviation for ‘oleoresin capsicum.’ OC spray is also known as pepper spray
….” United States v. Rodriguez, 392 F.3d 539, 542 n.1 (2d Cir. 2004). Taser is a company that
manufactures and sells conducted electrical weapons (“CEWs”), commonly known as tasers or stun
guns. See Taser Int’l, Inc. v. Phazzer Elecs., Inc., 754 F. App’x 955, 956 (Fed. Cir. 2018); see also Dillard v.
Burrs, No. 5:20-CT-03365-M, 2023 WL 2541711, at *2 (E.D.N.C. Mar. 16, 2023) (unpublished).
was in a rage.” (Id.) Plaintiff then alleges that “Covington was in fact a [sic] organizer of an
assault while ordering” and encouraging “Oxendine to contenue [sic] to beat me on 7-27-22
around 11:30 a.m.” before “officers allowed … Oxendine to enter and assault me as multiple

officer [sic] stood outside the door to watch the assault, including … Covington[.]” (Id.)
Plaintiff alleges “I was beaten extremely bad by … Oxendine.” (Id. at 9.)
Third, Plaintiff alleges that on July 28, 2022, around 9:45 a.m. (“Incident Three”),
“while being escorted to medical I was thrown to the ground and [an unknown officer] on top
of me kneed me in the face several time [sic] while in hand cuffs.” (Id. at 7, 9, 13.)
Fourth, Plaintiff alleges that on July 28, 2022, around 10:30 a.m. (“Incident Four”), he

was “taken to intake where I was assaulted by … Oxendine ‘on camera’ ” while Plaintiff was
“submitted and secured in handcuffs[;]” that Oxendine threw “multiple punches to the face
and head[;]” that at this same time Plaintiff was “being chocked [sic] by … Walker by him
squeezing the front of my windpipe before falling to the floor and … Oxendine having to be
restrained.” (Id.) (emphasis in original).) Plaintiff alleges that Scott “had full knowledge that
I was going to be assaulted as he stood and watched … Oxendine act in rage on camera

punching and smashing at the cage I was housed in[.]” (Id. at 7.) Plaintiff also alleges that
Scott witnessed Oxendine “communicate threats[.]” (Id.)
Fifth, Plaintiff alleges that on July 28, 2022, around 2:30 p.m. (“Incident Five”), “Walker,
… Gibson, … Hunt, and a unknown officer after being sprayed with O/C spray while being
housed in a holding cage, once taken to intake room off camera I was beaten badly with sticks,
punches, choked, kicked, and slammed … on the floor over and over[.]” (Id. at 7, 10, 13.)
Plaintiff alleges that “Covington had full knowledge of all the assaults.” (Id. at 8.)
Plaintiff claims he filed and completed grievances regarding the alleged constitutional
violations by Defendants. (See id. at 14-15.) He seeks $250,000 in damages “due to the fact

that I suffered large number of injuries, including injuries [to my functional mobility] that
are perminat [sic] and will effect [sic] my quality of life and ability to work and perform
larbor [sic] to provide for myself[.]” (Id. at 11.)
Based on the foregoing allegations and viewing the Complaint through the lens of liberal
construction, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (stating that “[a] document filed pro se
is to be liberally construed” and “a pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers” (cleaned up)), Plaintiff
pursues claims for excessive force under the Eighth Amendment. (Compl. at 4, 7-10, 13.)
On November 20, 2023, Defendants filed an Answer to the Complaint. (Docket Entry
12.) After the discovery period ended, Defendants filed the Motion for Summary Judgment
currently before the Court along with a Memorandum, a Declaration, Plaintiff’s medical
records, incident reports, NCDAC policy and procedure documents, and other documents in

support. (Docket Entries 32, 33, 34.) On December 5, 2024, Plaintiff filed a Response in
opposition to the Motion for Summary Judgment to which he attached six “exhibits” that state
the existence of video footage from some of the incidents alleged in the Complaint, along with
photos, an incident report, NCDAC policy and procedure documents, grievance documents,
and Plaintiff’s medical records. (Docket Entries 38-1 through 38-9, Docket Entry 39.) Again,
Defendants have filed a Reply to Plaintiff’s Response. (Docket Entry 43.) Defendants’

Motion for Summary Judgment is now ripe for ruling.
II. DISCUSSION

a. Plaintiff’s claims against individuals not named as defendants in this action
should be dismissed.

At the outset, the undersigned notes that Plaintiff brings claims against unknown officers
(see Compl at 7, 9, 13) but does not name them as defendants. “If Plaintiff intends to name
these unidentified individuals as Defendants in this matter, he must name them individually as
John Doe defendants until they can be identified through discovery or otherwise.” Gause v.
Jacobs, No. 3:22-CV-00099-MR, 2022 WL 1084745, at *4 (W.D.N.C. Apr. 11, 2022) (unpublished);
see also Farmer v. Wilson, No. 2:14-CV-13256, 2014 WL 4629591, at *1 (S.D.W. Va. Sept. 15, 2014)
(unpublished) (collecting cases). Because Plaintiff has not done so, the undersigned finds that
Plaintiff has failed to state a claim against the unknown officers and recommends that the claims
against them should be dismissed. Accord Lilakos v. New York City, No. 14 CV 5288 (PKC)(LB),
2016 WL 11395018, at *10 (E.D.N.Y. Jan. 21, 2016) (unpublished) (“[Plaintiff] fails to state a
claim because he fails to name any of the officers who were personally involved in his arrest as
defendants, even as John Does.”), report and recommendation adopted, No. 14CV05288PKCLB, 2016
WL 5928674 (E.D.N.Y. Sept. 30, 2016), aff’d, 808 F. App’x 4 (2d Cir. 2020).
Similarly, Plaintiff also mentions involvement by “officer bush [sic], officer McMillian[,]”
and “SPG Sergent [sic] Betha[,]” none of whom are named as defendants in this action. “Rule

10(a) of the Federal Rules of Civil Procedure requires that the title of the complaint contain the
names of all parties.” Hankins v. U.S. Customs & Border Prot. Agency, No. 7:24-CV-468-BO-BM,
2025 WL 848441, at *3 (E.D.N.C. Mar. 18, 2025). “[T]o make someone a party[,] the plaintiff
must specify [them] in the caption and arrange for service of process.” Myles v. United States, 416
F.3d 551, 551 (7th Cir. 2005). Thus, to the extent Plaintiff has attempted to allege claims against
persons who are not named as defendants and for whom summonses have not been issued, the
undersigned recommends that such claims should be dismissed. See id. (citations omitted).
b. Defendants’ Motion for Summary Judgment should be granted.

i. Relevant Legal Standards
Summary judgment is appropriate when there exists no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Zahodnick v. Int’l
Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears
the initial burden of coming forward and demonstrating the absence of genuine issue of material
fact. Temkin v. Frederick Cnty. Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex v. Catrett, 477

U.S. 317, 322 (1986)). Once the moving party has met its burden, the non-moving party must
affirmatively demonstrate there is a genuine issue of material fact which requires trial. Matsushita
Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial
unless there is sufficient evidence favoring the non-moving party for a fact finder to return a
verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v.
Calvert Cnty., Md., 48 F.3d 810, 817 (4th Cir. 1995). Thus, the moving party can bear their burden

either by presenting affirmative evidence or by demonstrating the non-moving party’s evidence
is insufficient to establish their claim. Celotex, 477 U.S. at 331 (Brennan, J., dissenting).
When making the summary judgment determination, the Court must view the
evidence, and all justifiable inferences from the evidence, in the light most favorable to the
non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196
(4th Cir. 1997). However, the party opposing summary judgment may not rest on mere

allegations or denials, and the court need not consider “unsupported assertions” or “self-
serving opinions without objective corroboration.” Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 962 (4th Cir. 1996); see also Anderson, 477 U.S. at 248-49. Moreover, “[t]he mere
existence of a scintilla of evidence” in support of the nonmoving party’s position is not

sufficient to defeat a motion for summary judgment; “there must be evidence on which the
[fact finder] could reasonably find for the [nonmoving party].” Anderson, 477 U.S. at 252.
ii. Analysis
1. Defendant’s Motion for Summary Judgment
Defendants argue that the “Court should find that Plaintiff’s Complaint is frivolous and
enter an order of dismissal with prejudice.” (Docket Entry 33.) They move for summary

judgment on several grounds. (Id.) First, insofar as Plaintiff has sued them in their official
capacities, Defendants contend they are entitled to sovereign immunity. (Id. at 10.) Second,
Defendants argue that Plaintiff’s individual-capacity claims “should be dismissed because
Plaintiff has failed to prove, beyond his baseless allegations, that [Hunt, Holmes and Covington]
had any personal involvement in the alleged acts.” (Id.) Third, Defendants argue that “Plaintiff
has failed to prove that any Defendant violated his Eighth Amendment rights through their use

of force.” (Id.) Finally, Defendants argue that they are entitled to qualified immunity. (Id.)
2. Plaintiff’s Response
In Plaintiff’s Response, he reiterates allegations regarding the incidents alleged in his
Complaint. (See Docket Entry 38 at 2-9.) Plaintiff argues that Defendants should not be entitled
to immunity and that the Defendants’ Motion for Summary Judgment should be denied because
“[a]ll of the Defendants had either personal involvement in the excessive use of force against
Plaintiff, stood in attendance and watched/witness the acts and did nothing to stop it, or knew
that the acts were about to happen and did nothing to prevent the acts[.]” (Id. at 10.)
With regard to Incident Four, Plaintiff makes arguments in the nature of a claim against

Covington for deliberate indifference to Plaintiff’s serious medical needs in violation of the
Eighth Amendment’s prohibition against cruel and unusual punishment; he also argues that
Covington and Scott are liable for supervisory liability related to said claim. (See id. at 11-12.)
With regard to Incident Five, Plaintiff also makes arguments for Eighth Amendment
deliberate indifference and supervisory liability against Covington. (See id. at 12.)5
Plaintiff argues that “Defendants [took] Plaintiff to the off-camera shower cell in

receiving to use force because they knew it would be a safe place to use excessive force and
violate Plaintiff’s Eighth Amendment.” (Id.) Plaintiff argues that “[t]his also shows malicious
intent. Using force of [sic] camera clearly shows that the Defendants had evil motives to abuse
their authority in a way that they could make efforts to cover up their acts. (Id. at 12-13.)
Plaintiff claims that “[i]t can be seen on video documents that Defendants acted in
malice with harmful intent to cause injury by the Defendants using deadly force to Plaintiff

while Plaintiff was harmless and secured in restraints.” (Id. at 13.) Plaintiff argues that
Defendants’ use of force against him while he was restrained violates North Carolina
Department of Adult Corrections (“NCDAC”)6 policy. (See id. at 13-15.) Plaintiff further

5 Plaintiff appears to allege for the first time that a sixth incident (“Incident Six”) took place
on July 28, 2022, around 2:30 p.m., in which Hunt “beat, punched, kicked and choked” Plaintiff (Id.)

6 Plaintiff’s filings reference the North Carolina Department of Public Safety. “The North
Carolina Department of Public Safety is now called the North Carolina Department of Adult
Corrections (NCDAC)[,] and the Court will refer to it accordingly.” Evans v. Ishee, No. 1:23-CV-00087-
MR, 2023 WL 3671821, at *1 (W.D.N.C. May 25, 2023) (unpublished).
argues that “the Defendant shown [sic] a pattern of events by purposely taking Plaintiff to off-
camera locations to use force against Plaintiff repeatedly over the course of two days.” (Id. at
14.) Plaintiff claims that the Photos filed at Docket Entry 38-7 at 1-6 “show the obvious

distress and pain Plaintiff endured.” (Id. at 14.)
With regard to Incidents One through Five, Plaintiff further argues that “[t]he amount
of force used was not proportional to the need.” (Id. at 16.) Plaintiff argues that he was not
a threat to staff safety and that he never attempted to commit assault or resisted staff. (See id.
at 17.) Plaintiff claims “[t]here is documented evidence of injuries” including his having
“received a swollen face, a swollen nose, a bleeding nose, a split open lip, a split head, a split

eyebrow, permanent back pain, a dislocated jaw, and slight loss of vision in right eye. (See id.
at 18 (citing Docket Entry 39).) Plaintiff argues that he has been disabled by these “permanent
injuries[,]” causing him to lose “a portion of the sight in his right eye” and his “ability to
perform labor to work a physical job to provide for himself” and “function pain-free.” (See
id.) Plaintiff argues that Defendants are not entitled to qualified immunity because they
intentionally violated Plaintiff’s clearly established constitutional rights, were motivated by

malicious intent, and willingly violated the law. (See id. at 19.)
3. This Court’s Findings

The Court first considers Defendants’ argument that the claims against them in their
official capacities are barred by sovereign immunity. (Id. at 10-11.) The Eleventh Amendment
prohibits actions in federal court against a state unless the state has consented to suit or unless

Congress has lawfully abrogated the state’s Eleventh Amendment immunity. Ballenger v. Owens,
352 F.3d 842, 844-45 (4th Cir. 2003). “[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official’s office.” Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (citing Brandon v. Holt, 469 U.S. 464, 471

(1985)). It follows that just as “the Eleventh Amendment bars a damages action against a state
in federal court,” it also bars suit against state officials in their official capacity. Kentucky v.
Graham, 473 U.S. 159, 169 (1985).
Here, all Defendants are employees of the State of North Carolina and immunity has
not been waived. Therefore, to the extent Plaintiff sues Defendants in their official capacities
and seeks monetary damages, sovereign immunity precludes the action. Dale v. FNU Barnes,

No. 1:23CV373, 2024 WL 4416440, at *3 (M.D.N.C. Oct. 4, 2024). Therefore, the
undersigned recommends that the Motion for Summary Judgment should be granted as to the
claims against Defendants in their official capacities.

Again, Plaintiff asserts that Defendants used excessive force against him in violation of
the Eighth Amendment when they allegedly assaulted, beat, pepper sprayed, and/or tased him

“5 times in a series of events on the days of 7-27-22 and 7-28-22.” (See Compl. at 4, 7-10, 13;
Docket Entry 38 at 10-19.) The Eighth Amendment protects prisoners from “unnecessary
and wanton infliction of pain.” Thompson v. Commonwealth of Virginia, 878 F.3d 89, 97 (4th Cir.
2017) (internal quotation omitted). When evaluating an excessive force claim, the Court “must
determine ‘whether force was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.’ ” Id. at 98 (quoting Hudson v. McMillian, 503

U.S. 1, 7 (1992)). To make this determination, the Court considers two elements: “whether
the prison official acted with a sufficiently culpable state of mind (subjective component) and
whether the deprivation suffered, or injury inflicted on the inmate was sufficiently serious
(objective component).” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008).

The Supreme Court has set forth a list of non-exclusive factors to assist courts in
determining whether an officer has acted with a culpable state of mind: “(1) the need for the
application of force; (2) the relationship between the need and the amount of force that was used;
(3) the extent of any reasonably perceived threat that the application of force was intended to
quell; and (4) any efforts made to temper the severity of a forceful response.” Iko, 530 U.S. at 239
(citing Whitley v. Albers, 475 U.S. 312, 321 (1986)) (internal quotations omitted). The objective

component focuses not on the severity of any injuries inflicted, but rather on “the nature of the
force,” which must be “nontrivial.” Wilkins v. Gaddy, 559 U.S. 34, 39 (2010) (citing Hudson, 503
U.S. at 7). The Eighth Amendment “excludes from constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a sort repugnant to the conscience of
mankind.” Hudson, 503 U.S. at 9-10 (internal quotation and citation omitted). “Prison officials are
given a certain amount of discretion in decisions to use force” because “they are frequently called

upon to maintain order, quell disturbances, and act in haste, under pressure.” Geddings v. Roberts,
1:15CV264, 2018 WL 1626116, at *9 (M.D.N.C. Mar. 30, 2018) (unpublished) (cleaned up).
Defendants argue that summary judgment is appropriate on the excessive force claim
because Plaintiff “failed to sufficiently plead malice and injury.” (Docket Entry 33 at 14-24.)
Defendants contend that the application of force was necessary to prevent further harm and
restore order, that the amount of force used was proportional to the need, that Plaintiff was a

perceived and actual threat to staff safety and institutional order, and that the record shows
that Defendants used only the force necessary to ensure Plaintiff complied with direct lawful
orders. (See id. at 14-21) Defendants deny Plaintiff’s allegations of injury and argue that the
evidence shows Plaintiff’s injuries, if any, were minimal and thus not sufficiently serious to

constitute an Eighth Amendment excessive force violation. (See id. at 21-24.)

Defendants support their arguments with evidence. (See generally Docket Entries 32,
33, 34.) Said evidence includes medical records that indicate Plaintiff was injured7 as a result
of multiple being “beaten, tased, and [pepper] sprayed” during altercations with prison staff
on July 27 and 28 2022; that Plaintiff was uncooperative, agitated, upset, irate, combative, and

verbally abusive, that Plaintiff made multiple death threats to personnel and their families (for
example, “I am going to kill on [sic] of you white people who keep bugging me if not you
someone else in this place, in uniform or out watch out.” (Docket Entry 34-1 at 331)), that
he spit in the face of a custody officer, and that he refused to comply with recommended
medical procedures. (See, e.g., Docket Entry 34-1 at 123-27, 139, 147, 149, 153, 157.)
Said medical records also includes a mental health referral screening report in which a

psychologist made a finding that “clearly supported malingering/high exaggeration of problem
areas for what appeared to be the purpose of pretending to have severe psychopathology ….
His previous testing indicates severe malingering.” (Id. at 78.) Said records also include a clinical

7 The medical records indicate Plaintiff experienced redness, hemorrhaging, abrasions,
tenderness, swelling, bruises, decreased range of motion, and pain to his right shoulder, right knee, right
ankle, left shin, jaw, eye; headaches, popping in his jaw, as well as open skin sores where taser leads landed
on his shoulder. (See generally Docket Entry 34-1.) The documentation filed by both parties indicates
Plaintiff was offered and received treatment for these injuries (see generally id.; see also Docket Entry 39),
except when he refused it (see, e.g., id. at 288, 293 (documenting refusal of treatment by Plaintiff)).
encounter on July 29, 2022, in which an RN stated Plaintiff “stated repeatedly that he needed
to go to the hospital, however was unable to give specific injuries or location of any injuries that
needed to be evaluated or treated. Redness noted to right eye but no other visible injuries noted

at this time.” (Id. at 138.) One record dated “07/27/2022 16:27” stated “Offender taking finger
and pushing it up nostrils attempting to retrieve blood.” (Id. at 152.) Also included among said
records are multiple sick call requests made by Plaintiff alleging he was assaulted multiple times
by prison staff that caused him injuries. (See, e.g., id. at 261-66, 277-80, 283-85.) All of said sick
calls include notation that clinical visits were scheduled in response to Plaintiff’s requests. (See
id.) The medical records attached to Defendants’ Motion for Summary Judgment also contain

multiple sick call appointment requests and clinical encounter documentation regarding medical
requests prior to the alleged incidents on July 27 and 28 2022. (See, e.g., id. at 371-84.)
Said evidence also includes NCDAC incident reports of Incident One (Docket Entry
34-2), Incident Two (Docket Entry 34-3), Incident Four (Docket Entry 34-4), and Incident
Five (Docket Entry 34-5).8
With regard to Incident One, the incident report states that Plaintiff

repeatedly stated that he was going have his homeboys in the parking lot to shoot
staff up, as they entered into Receiving [Plaintiff] was showing aggression, …
Gibson noticed contents in [Plaintiff’s] mouth, [Plaintiff] spit contents out of his
mouth and then spit at the officers and started to walk towards them, … Gibson
administered O.C. pepper spray to the facial area. [Plaintiff] refused to be
decontaminated. [Plaintiff] was placed in handcuffs and escorted to the clean
shower. [Plaintiff] was given a direct order for a complete search[,] [Plaintiff]
refused and stuffed a white bag in his mouth, [Plaintiff] was told multiple times
to spit what he had out, [Plaintiff] refused. … Gibson witnessed … Walker utilize
the CEW on [Plaintiff], [Plaintiff] was then escorted to medical for assessment. …

8 Plaintiff does not name the individual who he alleges assaulted him in Incident Three, and
Defendants produce no evidence regarding said incident.
Walker then observed two unknown objects in [Plaintiff’s] waistband, when
[Plaintiff] attempted to grab the unknown items in his waistband. … Walker
reached and placed [Plaintiff’s] right arm in a bent wrist and placed him on the
floor, [Plaintiff] then snatched away and placed his right arm under his body, the
CEW was administered to the upper right back area to gain compliance, [Plaintiff]
then removed his arm and was placed in handcuffs, the unknown [sic] in his mouth
was removed which was 35 suboxone strips, two packages of a green leafy
substance that appear to [be] marijuana and 14 strips of k-2. The unknown objects
that were removed from his waistband was [sic] found to be two sharpened metal
homemade weapons. The contraband was turned over to the OIC per DPS policy.
… Walker observed [Plaintiff] for one hour due to be [sic] OC pepper sprayed. …

Holmes stated that [Plaintiff] was very hostile and threatening staff by saying that
he was going to have his blood homeboys shoot her and … Gibson. …

Video camera footage was viewed, on 7/27/22 at 0953 hours, … Holmes and
Gibson are in Receiving, at 0958 hours … Covington enters Receiving through
IR-l (medical door) he and … Gibson talk briefly. However, due to the location
of the camera the actual incident is not captured. …

Based on the statements, use of force was justified, only the amount of was force
used to achieve the necessary objective. All policies and procedures were followed.

(Docket Entry 34-2 at 2-4.)
With regard to Incident Two, the incident report states that
Scott stated while working on Mcon [Plaintiff] was placed in the holding cell.
[Plaintiff] was irate and stated[,] “On Blood you dead on blood you dead.” … Scott
stated he informed [Plaintiff] that his issue is not with Macon staff and that they
don’t know what’s going on. [Plaintiff] then started punching the glass in the cell
door. … Scott then stated he gave [Plaintiff] a direct order to stop punching the
glass [with] which he complied. … Scott then gave [Plaintiff] a directive to submit
to cuffs due to the fact he was being placed in Restrictive Housing …. [Plaintiff]
refused to comply stating[,] “Fuck you bitch ass on blood your whole family is dead
bitch ass.” … Scott stated he then administered a burst of oc pepper spray to the
facial area of the [Plaintiff]. [Plaintiff] was then taken to receiving for
decontamination. [Scott] stated he was then relieved by … Walker. …

Walker stated that … he responded to an Inmate disturbance in the Mcon
hallway holding cell. … Walker stated when he responded he observed
[Plaintiff] creating a disturbance using profane language. [Plaintiff] was given a
directive to submit to handcuffs and be placed in his Restrictive Housing bed
assignment. [Plaintiff] refused and then [Walker] observed Scott administrate
[sic] oc pepper spray to the facial area of [Plaintiff]. [Plaintiff] was placed in
handcuffs and removed from the holding cell and escorted to receiving. …

Walker stated while he was assisting with the decontamination of [Plaintiff] in
receiving due to being exposed to OC pepper spray. During the process, [Plaintiff]
stated “word to blood … When he gets a phone call yall are shot, it’s going to be
100 shots into yall houses when he gets yall names [sic].[”] [Plaintiff] also stated
he call the homies Taliban and streets and it was over [sic], … Walker stated he then
gave [Plaintiff] an order to decontaminate which he refused. Medical staff had
come in receiving and tried to evaluate [Plaintiff]. [Plaintiff] then became
combative and attempted to resist medical staff. … Walker stated then administered
l and a half of [sic] oc pepper spray. [Plaintiff] decontaminated per DPS Policy[.]

[The viewable video evidence and the statements of other correctional officers
who were involved in or witnessed this event are consistent with the statements
by Scott and Walker.]

[With regard to Plaintiff,] staff followed all policies and procedures we have in
place for this type of incident.

(See Docket Entry 34-3 at 6-22.)

With regard to Incident Four, the incident report states that Oxendine
stated that he assisted in escorting [Plaintiff] to the MCON Exam room. While
being escorted [Plaintiff] become irate and uncooperative, by refusing to walk.
[Plaintiff] was placed on a flat surface (floor) in order to gain compliance. Once
inside the MCON Exam room, [Plaintiff] spit on … Oxendine, and attempted
to assault … Oxendine, by kicking towards his stomach area. Staff members
separated … Oxendine and [Plaintiff], in order to prevent assault. … Oxendine
assisted with escorting [Plaintiff] to medical from Receiving, while waiting for
IR1 door to be opened, [Plaintiff] turned aggressively towards … Oxendine and
spit. … Oxendine utilized his left hand to tum [Plaintiff’s] head in order to
prevent further assault. [Oxendine] then assisted staff with placing [Plaintiff] on
a flat surface (wall). [Plaintiff] continued to resist staff after he was placed on a
flat surface. [Plaintiff] was able to take control of … Oxendine’s left arm at which
time … Oxendine was able to use his right hand to perform two counter strikes
to [Plaintiff’s] brachial plexus tie in. [Plaintiff] then slipped out [sic] his right
handcuff, and at that [Oxendine] attempted to perform a strike to [Plaintiff’s]
brachial Plexus tie in again, when [Plaintiff] moved, and he was struck in the
brachial origin. … Oxendine was then removed from the situation. …

Walker stated that he assisted in escorting [Plaintiff] to the MCON Exam room
for assessment. While escorting [Plaintiff, Plaintiff] began using profane
language stating[,] “You faggot ass bitches gonna have to kill me or ship me!”
[Plaintiff] was given a direct order to stop his actions and he refused. [Plaintiff]
then attempted to pull away from staff. … Walker then placed [Plaintiff] on the
wall utilizing the upper arm control. [Plaintiff] was then escorted to the exam
room, and [Plaintiff] again became combative. … Walker then utilized the upper
arm control and placed [Plaintiff] to a flat surface floor [sic]. [Plaintiff] was
escorted to Receiving. After the complete search was conducted, … Walker
assisted … Oxendine escort [sic] [Plaintiff] to Main Medical, due to [Plaintiff]
aggressive and irate behavior he and … Oxendine had control of [Plaintiff] [sic].
While waiting for IR1 door to open … Walker observed [Plaintiff] turn towards
… Oxendine and spit on him. … Oxendine deflected [Plaintiff] spitting on him.
… Walker then assisted placing [Plaintiff] on a flat surface (wall). [Plaintiff]
continues to be resistant and aggressive with staff and grabs … Oxendine[’s]
hand, … Oxendine then performs strikes to [Plaintiff’s] shoulder area to break
the hold. [Plaintiff] then slips on [sic] the handcuffs and attempts to strike
towards … Oxendine. … Oxendine the performs a strike to [Plaintiff]. …
Walker then places [Plaintiff’s] free hand back into the restraints. …

[No photo evidence of this incident is available. The available video evidence
and the statements of other correctional officers who were involved in or
witnessed this event are consistent with the statements by Oxendine and
Walker.] … All policies and procedures were followed involving use of Force
… Staff utilized an appropriate amount of force to obtain the correctional
objective. … Oxendine did exacerbate the situation, and he was removed from
the situation by fellow staff members. He received a coaching for his actions.

(Docket Entry 34-4 at 2-39.)

With regard to Incident Five, the incident report states that Plaintiff
assaulted … Gibson by spitting in his facial area. Use of force was conducted
incident [sic]. During the search of [Plaintiff,] a homemade weapon was found.
… Gibson stated … he observed [Plaintiff] standing on the bench. … Gibson
stated he gave [Plaintiff] a direct order to get down which he refused and started
yelling … Gibson stated at that time [Plaintiff] spit on him. … Gibson then
administered oc pepper spray to [Plaintiff’s] facial area and called for assistance.
… Gibson assisted in placing [Plaintiff’s] right hand in cuffs. … Gibson stated
he was not injuried [sic] but assaulted.

… Walker reported … he responded to [an] Inmate disturbance in the Red Unit
hallway. When he arrived … he observed [Plaintiff] spit on … Gibson. …
Walker stated he then observed … Gibson administrate [sic] oc pepper spray
to [Plaintiff]. … Walker stated he gave [Plaintiff] a direct order to submit to
cuffs and he refused. … Walker stated he then administered oc pepper spray
to [Plaintiff]. [Plaintiff] was then removed from the holding cell and escorted
to receiving for decontamination. …

[Scott stated that] during the search of [Plaintiff] a homemade knife was found
in the rights [sic] pocket of [Plaintiff’s] pants. At that time [Plaintiff] became
very irate stating “he was going to touch him up, bitch.”

[The available video evidence and the statements of other correctional officers
who were involved in or witnessed this event are consistent with the statements
by Gibson and Walker.] … Based on the evidence gathered, it appears this use
of force was justified in order to achieve the correctional objective. All other
policies and procedures appear to have been followed.

[Plaintiff was found guilty of a variety of disciplinary infractions as a result of
the incident described above.]

(Docket Entry 34-5 at 2-15.)
After careful consideration of the above, the undersigned finds that the evidence
submitted by Defendants supports a finding that the uses of force occurred in response to
irate, noncompliant (including possession of contraband), abusive, threatening (including
possession of weapons), and occasionally assaultive behavior by Plaintiff; were necessary and
proportional; caused minimal injuries; and were motivated not by malicious or sadistic intent,
but instead applied in good faith for the purpose of neutralizing the threats posed by Plaintiff,
restoring order and discipline, and maintaining safety in the prison. The Court notes that:
[c]orrections officers act in a good faith effort to maintain or restore discipline —
that is, with a permissible motive — not only when they confront immediate risks
to physical safety, but also when they attempt to preserve internal order by
compelling compliance with prison rules and procedures.” Brooks v. Johnson, 924
F.3d 104, 113 (4th Cir. 2019) (internal quotation marks omitted); see also id. at 117
(agreeing “that inmates cannot be permitted to decide which orders they will obey,
and when they will obey them” (internal brackets and quotation marks omitted)).
“And [courts] owe [corrections] officers wide-ranging deference in their
determinations that force is required to induce compliance with policies
important to institutional security.” Id. at 113 (internal quotation marks omitted).
Diamond v. Odedere, No. 1:22CV287, 2024 WL 230113, at *4 (M.D.N.C. Jan. 22, 2024) (unpublished),
report and recommendation adopted, No. 1:22CV287, 2024 WL 1014123 (M.D.N.C. Mar. 8, 2024).
Accordingly, the undersigned finds that Defendants needed to apply force to

neutralize the extensive threats they reasonably perceived Plaintiff poses, that the amount
of force used was proportional to accomplishing that task, and that Defendants who applied
force acted within their discretion and tempered the severity of their response by following
policy and by using only enough force to gain Plaintiff’s compliance and ensure their own
safety. Cf. Whitley, 475 U.S. at 321. Thus, Defendants have carried their initial burden of
coming forward and demonstrating the absence of a genuine issue of material fact, Celotex,

477 U.S. at 322; the burden now shifts to Plaintiff to affirmatively demonstrate that there is
a genuine issue of material fact which requires trial, Matsushita, 475 U.S. at 587.

Although Plaintiff references “exhibits” (consisting essentially of statements that video
evidence exists, but not of the videos themselves), the majority of Plaintiff’s Response is
comprised of repetitions of and expansions9 on the claims he raised in his Complaint. (See

generally id.) At the Summary Judgment stage, the Court cannot weigh evidence or engage in
credibility findings. See Tekman v. Reliance Standard Life Ins. Co., 55 F.4th 951, 959 (4th Cir. 2022).
Even so, as shown below, Plaintiff fails to support his allegations and arguments with any

9 The undersigned notes that Plaintiff cannot amend the Complaint by alleging new claims in
his Response to Defendants’ Motion for Summary Judgment. See Barclay White Skanska, Inc. v. Battelle
Mem’l Inst., 262 F. App’x 556, 563 (4th Cir. 2008); United States v. Jones, No. 87-7313, 1988 WL 21257, at
*1 (4th Cir. 1988) (unpublished). Accordingly, to the extent Plaintiff raises new facts and claims in the
Response that did not appear in the Complaint, the Court disregards such claims and facts. See Murray
v. Tina, No. 5:18-CT-3026-FL, 2020 WL 1490696, at *5 (E.D.N.C. Mar. 24, 2020) (collecting cases); see
also S. Walk at Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir.
2013) (“It is well-established that parties cannot amend their complaints through briefing….”).
evidence sufficient to defeat a motion for summary judgment. (See, e.g., Docket Entry 38 at
17 (wherein Plaintiff argues “Plaintiff has proven these claims to be false with support of video
documented exhibits” but does not submit any video footage evidence whatsoever).)

As to Plaintiff’s Exhibits 1 through 6, Plaintiff references video evidence and provides
what he says are descriptions of said videos. (Docket Entries 38-1 through 38-6.) The
descriptions suggest, to wit, the existence of surveillance camera footage of Incident One,
Incident Two, Incident Three, and Incident Six. (See id.) However, no party has filed the
video footage itself with the Court. “Accordingly, the [C]ourt has considered only the
[evidence] in [the] record.” See West v. Fine Rugs of Charleston, Inc., No. CV 2:23-6389-RMG-

PJG, 2025 WL 1625574, at *6 n.4 (D.S.C. Mar. 18, 2025), report and recommendation adopted, No.
2:23-CV-6389-RMG, 2025 WL 1261203 (D.S.C. May 1, 2025). Mere descriptions of video
footage amount to conclusory allegations unsupported by evidence in the record; thus, without
more, they cannot defeat a motion for summary judgment. See Vick v. Stone, No. 5:22-CT-3022-
FL, 2024 WL 5445063, at *4 (E.D.N.C. Sept. 27, 2024), aff’d, No. 24-6986, 2025 WL 689414 (4th
Cir. Mar. 4, 2025) (citing Wai Man Tom v. Hosp. Ventures LLC, 980 F.3d 1027, 1037 (4th Cir.

2020) (“[C]onclusory allegations or denials, without more, are insufficient to preclude granting
the summary judgment motion.”); Evans, 80 F.3d at 960 (explaining “unsubstantiated
allegations and bald assertions” cannot defeat a motion for summary judgment)).
As to the five photos attached as “Exhibit 7,” they are time-stamped “07/28/2022
10:24[,]” “07/28/2022 14:25[,]” and “07/28/2022 14:64[;]” they appear to depict a man being
restrained by one or two other individuals. (See Docket Entry 38-7 at 1-6.) However, the

photos do not conclusively confirm or deny Plaintiff’s arguments, as they lack color and are
generally of low quality and poor resolution. Cf. Barrett v. Moody, No. 19-CV-190JLS(SR), 2023
WL 2898310, at *8 (W.D.N.Y. Feb. 23, 2023) (unpublished), report and recommendation adopted,
No. 19CV190JLSHKS, 2023 WL 2898659 (W.D.N.Y. Apr. 10, 2023). Thus, the undersigned

finds that they provide no support to Plaintiff’s argument that Defendants’ Motion for
Summary Judgment should be denied.
As to the documents attached as “Exhibit 8[,]” they contain Plaintiff’s medical records.
(Docket Entry 39.) Said records include, in pertinent part, documentation of clinical
encounters in which Plaintiff reported pain or trauma in his head, eye, eyebrow, jaw, back, and
shoulder as a result of an altercation with custody (see id. at 2-5, 16-22, 24-43), of sick calls

pertaining thereto (id. at 6, 8, 12-15, 45-47, 49, 51-53), of dental treatment (id. at 7, 9-11), of a
mental health services referral (id. at 48), and of a medication summary (id. at 55).
They also include documentation of a clinical encounter on July 27, 2022, which reports
that Plaintiff complained of injuries and pain to his eyebrow, lip, neck, arms, face, jaw, ear,
back, and legs caused by a use of force by custody, but that he refused a use-of-force
assessment; that Plaintiff stated “they jumped me three times, sprayed me and tazed me[;]”

that Plaintiff was “yelling and cursing at staff[;]” and that Plaintiff stated “he’s got people
coming to this prison that will kill one of them or more and their families. Inmate stated out
loud (screaming) that …” (Id. at 23.) The remainder of said report is not included in Plaintiff’s
attachments, but it is included in Defendants’ attachments, and it states: “… he’s already killed
2 people himself and it’s nothing to him to kill all of them (custody). He called out names like
“fat ass”, faggot”, mother F#@$” [sic]. He was very irate and had to be constantly redirected

to answer providers [sic] questions.” (Docket Entry 34-1 at 123.)
Another encounter report dated “07/27/2022 16:27” states, “Offender highly agitated
and unwilling to be fully assessed for neuro checks. Yelling and cursing at staff. No swelling
noted to head that was observed through door vision glass. Offender taking finger and

pushing it up nostrils attempting to retrieve blood. Alert and oriented at time of observation.”
(Docket Entry 39 at 38.) Another encounter report dated “07/27/2022 11:37” states
“Offender in receiving decontamination cell complaining ‘I am hot’
uncooperative to custody. Approximately 10 mins Offender is escorted in to
[sic] main medical by custody then falls on the floor as limp, then placed in
medical chair for assessment, then states ‘I can’t breath [sic], they have beat me
and jumped me three times, sprayed me and tased me.’ ” …

Yes: Appears in Distress, Appears in Pain, Visible Injury, Well Developed/Well
Nourished, Alert and Oriented to Time, Place, and Person

On arrival to medical and being placed in medical chair, leaning forward with
eyes closed, then becomes highly agitated, starts cursing, yelling at staff, blood
noted to face, scalp and clothes, alert and oriented x 3 to name, dob, opus.
Open laceration to left eye brow [sic] measuring 2 cm x 1 cm with small amount
of bloody drainage, swelling and dried blood noted to left top of scalp with no
open lacerations visualized through hair measuring 5 cm x 4 cm. Eyes are
reddened …. Abrasions noted to lower lip without drainage. Redness noted
the back of his neck. Clear and even respirations noted with clear lung sounds
…. No rhonchi or wheezes noted.

(Id. at 39-41.)
Another encounter report dated “07/28/2022 00:02” states Plaintiff was bruised and
bleeding and that “4 puncture marks from taser [were] noted on [Plaintiff’s] right upper back.
(Id. at 37.) Said report goes on to state that Plaintiff made “multiple threats toward day shift
custody staff. [Plaintiff] states ‘I got 2 murder charges, what’s one more to me?’ [Plaintiff]
was seen earlier for use of force assessment. [NP] notified due to multiple injuries.” (Id.)
Defendants do not dispute that Plaintiff was injured; all of the above medical records
were also filed by Defendants as attachments to their sealed brief in support of their Motion
for Summary Judgment. (Docket Entry 34-1 at 34-37, 92, 93, 98, 99-101, 104-07, 112-13, 116-
19, 122-23, 128-39, 148-49, 153-55, 204-05, 261-65, 283-85, 349.)
As to the document attached as “Exhibit 9[,]” it contains NCDAC policies and procedures

on the use of force; Defendants also attach the same document. (Compare Docket Entry 38-8
with Docket Entry 34-6.) Plaintiff does not provide any separate evidence that said policies or
procedures were violated; he only offers conclusory and unsupported allegations thereof. Thus,
the undersigned finds said document is not evidence that creates a genuine issue of material fact
or otherwise supports a finding denying Defendants’ Motion for Summary Judgment.
Lastly, as to the document attached as “Exhibit 10[,]” it contains documents pertaining

to grievances filed by Plaintiff pursuant to the NCDAC’s Administrate Remedies Procedures
(“ARP”).10 (Docket Entry 38-9.) Said attachment includes an NCDAC Inmate Grievance
Resolution Board (“IGRB”) document that states “it appears the facility has taken the
appropriate action … . Thus, this grievance is considered resolved by IGRB staff.” (Id. at 2.)
It also includes NCDAC ARP forms filled out by Plaintiff dated “8/18/22” and “10/13/22”
in which he appears to complain of Incidents One, Two, Three, Four, and/or Five. (See id. at

3-5, 8.) It also includes a DC-410 Screening Response, an NCDAC Step One unit response,
and a Step Two grievance appeal (See id. at 6-7, 10.) Here, Defendants do not dispute that
Plaintiff exhausted his administrative remedies with respect to the incidents he alleges in his
Complaint. (See generally Docket Entries 33, 34.) Thus, these documents provide no basis to

10 The ARP establishes a three-step procedure governing submission and review of inmate
grievances. Moore v. Bennette, 517 F.3d 717, 721 (4th Cir. 2008). Inmates are required to exhaust
administrative remedies with the NCDAC in accordance with ARP. Id. An inmate does not exhaust his
administrative remedies with the NCDAC until he completes all three steps of the ARP. Id.
support a finding that Defendants’ Motion for Summary Judgment should be denied. See
Montalvo v. Owen, No. 6:10-CV-01626-RBH, 2010 WL 4751576, at *3 (D.S.C. Nov. 16, 2010)
(unpublished) (“While Plaintiff is correct that a prisoner is required to exhaust all available

administrative remedies prior to filing a suit in federal court challenging the conditions of
confinement, exhaustion of these claims is not at issue in this case.”).
As discussed above, Defendants have met their initial burden of coming forward and
demonstrating the absence of a genuine issue of material fact. “Plaintiff’s self-serving
allegations are insufficient to withstand summary judgment.” Lewis v. Peterkin, No. 1:19CV418,
2023 WL 6319553, at *16 (M.D.N.C. Aug. 31, 2023) (unpublished) (citing Pronin v. Johnson, 628

F. App’x 160, 161 (4th Cir. 2015)), report and recommendation adopted, No. 1:19-CV-418, 2023 WL
6314202 (M.D.N.C. Sept. 28, 2023). Thus, Plaintiff has presented no evidence to carry his
burden of affirmatively demonstrating there is a genuine issue of material fact which requires
trial.11 Ultimately, Plaintiff must do more than merely explain why his case should not be
dismissed—submission of affidavits and other competent evidence are required to defeat a
summary judgment motion. See Pledger v. Lynch, 5 F.4th 511, 525 (4th Cir. 2021). Put differently:

The non-moving party may not defeat a properly supported summary judgment
motion by simply substituting the “conclusory allegations of the complaint or
answer with conclusory allegations of an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 888 (1990). This applies even where the non-moving party is a pro se
prisoner. Campbell-El v. Dist. of Columbia, 874 F. Supp. 403, 406-07 (D.C. 1994).
Unsupported speculation is not enough to withstand a motion for summary
judgment. See Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir. 1986).
Similarly, “[t]he mere existence of some alleged factual dispute” cannot defeat a

11 Cf. Crawford v. Hawkins, No. 5:20-CT-03325-M, 2023 WL 3437806, at *8 (E.D.N.C. May 12, 2023)
(unpublished ) (“Because plaintiff’s bald … claims merely rest upon the allegations in his complaint, …
and because his responses in opposition to defendants’ motion for summary judgment are speculative and
unsupported, … he fails to [come forward with specific facts showing that there is a genuine issue for
trial such that defendants’ motion for summary judgment should be denied.]”) (citations omitted).
motion for summary judgment; the dispute must be both “material” and “genuine,”
meaning that it “might affect the outcome of the suit under the governing law.”
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001) (emphasis omitted).

Harrison v. Avent, No. 1:23CV259 (RDA/WEF), 2025 WL 2076464, at *4 (E.D. Va. July 23, 2025).
Here, as shown above, Plaintiff, the non-moving party, has merely set forth conclusory
allegations and speculation unsupported by competent evidence. Accordingly, the undersigned
finds that the dispute he argues is neither material nor genuine, and that there is insufficient
evidence in the record favoring Plaintiff such that a fact finder could return a verdict in his
favor or otherwise conclude that the use of force by any Defendant constituted excessive force
in violation of the Eighth Amendment. Accordingly, the undersigned recommends that
Defendant’s Motion for Summary Judgment should be granted and that the remainder of
Plaintiff’s claims should be dismissed with prejudice. Cf. Ennis v. Nat’l Ass’n of Bus. & Educ.
Radio, 53 F.3d 55, 62 (4th Cir. 1995) (“The building of one inference upon another will not
create a genuine issue of material fact. Mere unsupported speculation … is not enough to
defeat a summary judgment motion.”).

Defendants also contend that they have qualified immunity, and that summary
judgment should be granted on that basis. (See Docket Entry 33 at 10, 24-25.) Under the
doctrine of qualified immunity, “government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Ridpath v. Bd. of Governors Marshall

Univ., 447 F.3d 292, 306 (4th Cir. 2006) (“Qualified immunity shields government officials
performing discretionary functions from personal-capacity liability for civil damages under
§ 1983[.]”). Thus, the traditional two-step qualified immunity inquiry requires a court to
determine: “(1) whether the official violated a constitutional right; and if so, (2) whether the

right was ‘clearly established’ at the time of its violation.” Rock for Life-UMBC v. Hrabowski,
411 Fed. App’x 541, 546-47 (4th Cir. 2010) (citation omitted). In evaluating qualified
immunity, a court initially may determine whether the plaintiff has alleged or shown a violation
of a constitutional right at all. See Pearson v. Callahan, 555 U.S. 223 (2009). Further, “[b]ecause
qualified immunity is designed to shield officers not only from liability but from the burdens
of litigation, its establishment at the pleading or summary judgment stage has been specifically

encouraged.” Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992).
As discussed above, Plaintiff is unable to demonstrate a violation of his constitutional
rights by any Defendant. Therefore, the undersigned concludes that Defendants are entitled
to qualified immunity as to Plaintiff’s claims against them. See Abney v. Coe, 493 F.3d 412, 415
(4th Cir. 2007) (finding that “[i]f [an official] did not violate any right, [they are] hardly in need
of any immunity and the analysis ends right then and there”); Parker v. Burris, 2015 WL

1474909, at *8 (M.D.N.C. Mar. 31, 2015) (unpublished) (finding that “the absence of evidence
supporting a finding that a constitutional violation occurred satisfies the first prong of the
qualified immunity analysis”), report and recommendation adopted, No. 1:13CV488, 2015 WL
2169148 (M.D.N.C. May 8, 2015), aff’d, 623 F. App’x 82 (4th Cir. 2015).
Lastly, Defendants request that the instant action be dismissed with prejudice. (Docket
Entry 34 at 10.) Because this Court has found on the merits that Defendants are entitled to

summary judgment, this Court recommends that Plaintiff’s Complaint should be dismissed
with prejudice. Jasmaine v. Engrime, No. 3:18-CV-00364-MR, 2020 WL 4504433, at *2
(W.D.N.C. Aug. 5, 2020) (unpublished) (“[T]he instant case will be dismissed with prejudice
because Defendants are entitled to summary judgment on the merits of Plaintiff’s claims ….”).

c. Defendants’ Motion to Seal should be granted.
On November 20, 2024, Defendants filed the Motion to Seal. (Docket Entry 35). Along
with the Motion, the Defendants filed an unsealed but redacted copy of their Memorandum
and documents in support. (Docket Entry 33.) Defendants also filed mostly unredacted12
copies of the Memorandum and documents in support under seal. (Docket Entry 34.)
Defendants seek to seal all submitted medical records (Docket Entry 34-1 at 1-384). There has

been a reasonable opportunity for any interested parties to address the matter. Plaintiff has not
responded to or joined in the Motion to Seal, nor has any other party filed a response.
i. Relevant Legal Standards
Because Defendants’ Memorandum and Plaintiff’s medical and prison records are
submitted in connection with the Motion for Summary Judgment, the documents are judicial
records, and the right of access is protected under the First Amendment. Doe v. Pub. Citizen,

749 F.3d 246, 267-68 (4th Cir. 2014). Therefore, the granting of a motion to seal is proper
only when a compelling government interest is shown, and the sealing of the documents is
narrowly tailored to meet the compelling interest. Rushford v. New Yorker Magazine, Inc., 846
F.2d 249, 253 (4th Cir. 1988) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510
(1984)). In considering the issue, the court must:
[W]eigh the appropriate competing interests under the following procedure: it
must give the public notice of the request to seal and a reasonable opportunity

12 Instances of Plaintiff’s date of birth are partially redacted in this filing. (Docket Entry 34.)
to challenge the request; it must consider less drastic alternatives to sealing; and
if it decides to seal it must state the reasons (and specific supporting findings)
for its decision and the reasons for rejecting alternatives to sealing.

Va. Dept. of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004).
North Carolina law addresses records maintained in state facilities providing mental
health care and states in part that “no individual having access to confidential information may
disclose this information.” N.C. Gen. Stat. § 122C-52(b). The statute further states that “each
client has the right that no confidential information acquired be disclosed by the facility.” N.C.
Gen. Stat. § 122C-52(c). The Health Insurance Portability and Accountability Act prohibits a
person from disclosing “individually identifiable health information[.]” 42 U.S.C. § 1320d-
6(a)(3). There is no blanket exception to the First Amendment right to access for medical
records. See Musgrove v. Moore, No. 1:19-CV-164, 2022 WL 19977408, at *2 (M.D.N.C. Apr. 20,
2022) (unpublished). However, there is an “important governmental interest” in protecting
sensitive medical information. See Fulp v. Columbiana Hi Tech, LLC, No. 1:16-CV-1169, 2018 WL
1027159, at *10 (M.D.N.C. Feb. 21, 2018) (unpublished).
ii. Analysis

Here, “[w]hile Plaintiff’s medical records contain information relevant to issues before
the Court, the records also include highly personal facts about Plaintiff’s prior medical
history[,]” Dale v. FNU Barnes, No. 1:23CV373, 2024 WL 4416440, at *13 (M.D.N.C. Oct. 4,
2024), including mental health care received by Plaintiff while incarcerated. “The Court finds
there is a compelling interest to protect such information.” Id. The Court also finds there is
no less restrictive way to protect the information than sealing the entirety of the medical

records. See Fulp, 2018 WL 1027159, at *10. Interested parties have had an opportunity to
object to the request to seal the documents and no party has done so. Consequently, the
undersigned orders that Defendants’ Motion to Seal is granted with respect to Plaintiff’s
medical records filed as Defendants’ Exhibit 1. (Docket Entry 34-1 at 1-384.)

III. CONCLUSION
For the reasons stated herein, IT IS HEREBY RECOMMENDED that all of
Plaintiff’s claims against individuals not named as Defendants in this action should be
DISMISSED.
IT IS FURTHER RECOMMENDED that Defendants’ Motion for Summary
Judgment (Docket Entry 32) should be GRANTED. The undersigned recommends that

Plaintiff’s Complaint should be DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendants’ Motion to Seal (Docket Entry 35)
is GRANTED. The unredacted attachment filed as Defendants’ Exhibit 1 (Docket Entry 34-
1 at 1-384) shall remain permanently sealed.

/s/ Joe L. Webster
United States Magistrate Judge

August 15, 2025
Durham, North Carolina

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11138024. Public record. Not legal advice.