Pace

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:25-cv-00206-MR

DAMON LAMARD PACE, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

DILON BYRD, et al., )

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on the Defendant’s Motion for

Summary Judgment [Doc. 11].

I. BACKGROUND

The Plaintiff Damon Lamard Price, proceeding pro se, filed this action

pursuant to 42 U.S.C. § 1983 addressing incidents that allegedly occurred at

the Polk County Detention Center (“PCDC”) while he was a pretrial

detainee.1 The Plaintiff’s unverified Complaint passed initial review against

Dilon Byrd, a correctional officer, for the use of excessive force and for

1 The Plaintiff is currently an inmate of the State of North Carolina at the Albemarle

Correctional Institution.

deliberate indifference to a serious medical need. [Doc. 1: Compl.; Doc. 6:

Order on Initial Rev.]. The Plaintiff seeks damages.2 [Doc. 1 at 5].

Presently pending is the Defendant’s Motion for Summary Judgment.3

[Doc. 11]. Thereafter, the Court entered an Order in accordance with

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising the Plaintiff of

the requirements for filing a response to the summary judgment motion and

of the manner in which evidence could be submitted to the Court. [Doc. 13:

Roseboro Order]. The Plaintiff has not responded, and the time to do so has

expired. 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

2 The Plaintiff’s request for injunctive relief was mooted by Plaintiff’s transfer to state

custody. [See Doc. 1 at 5; Doc. 6]; Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th Cir.

2007) (“the transfer of an inmate from a unit or location where he is subject to [a]

challenged policy, practice, or condition, to a different unit or location where he is no

longer subject to the challenged policy, practice, or condition moots his claims for

injunctive and declaratory relief.”).

3 The Plaintiff’s Motion for Summary Judgment [Doc. 38: Plaintiff’s MSJ] was previously

denied [Doc. 59: Order].

(1986). A fact is material only if it might affect the outcome of the suit under

governing law. Id.

The movant has the “initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the absence of a genuine

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

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving

party. The nonmoving party “must set forth specific facts showing that there

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

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

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

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

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

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

nonmoving party must present sufficient evidence from which “a reasonable

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

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

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

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

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

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

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

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

‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127

S.Ct. 1769, 1776 (2007). As the Supreme Court has emphasized,

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

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

show there is some metaphysical doubt as to the

material facts …. Where the record taken as a whole

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

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

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

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

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

alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be

no genuine issue of material fact.” Anderson v.

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

2505 (1986). When opposing parties tell two

different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury

could believe it, a court should not adopt that version

of the facts for purposes of ruling on a motion for

summary judgment.

Scott, 550 U.S. at 380.

III. FACTUAL BACKGROUND

The following is a summary of the relevant portions of the undisputed

forecast of evidence.4

The Plaintiff was an inmate at the PCDC on February 18, 2023. [Doc.

12-2: Byrd Decl. at ¶ 2]. The Plaintiff was placed in a suicide prevention cell

that day due to mental health issues. [Id.]. For safety reasons, the only items

allowed in a suicide prevention cell are a smock and a blanket. [Id.].

The Plaintiff began urinating through a small opening at the bottom of

the cell; a towel was placed under his doorway to prevent urine from flowing

to the booking area. [id. at ¶ 3]. At approximately 8:19 a.m., Byrd noticed

the Plaintiff pull the towel into his cell. [Id. at ¶ 4]. Byrd opened the food port

and repeatedly instructed the Plaintiff to return the towel; the Plaintiff refused.

[Id. at ¶ 5].

Byrd and Sergeant Cantrell5 opened the Plaintiff’s cell door. [Id. at ¶ 6].

Cantrell had his taser at the ready position in drive stun mode. [Id.]. Byrd

successfully pulled the towel out of the cell despite the Plaintiff pulling it back.

[Id.]. The Plaintiff then tried to force his way out of the cell. [Id. at ¶ 7]. Byrd

4 The unverified Complaint cannot be considered on summary judgment as a forecast of

evidence. Goodman v. Diggs, 986 F.3d 493, 498-99 (4th Cir. 2021) (a verified complaint

is the equivalent of an opposing affidavit for summary judgment purposes).

5 Sergeant Cantrell is not a defendant in this case.

drove the Plaintiff back, and the Plaintiff grabbed Byrd’s right arm. [Id.].

Cantrell then drive stunned the Plaintiff in the left buttocks area. [Id. at ¶ 7].

As Byrd and Cantrell attempted to place the Plaintiff back in the cell,

the Plaintiff grabbed Byrd’s duty belt on the right side, where Byrd’s taser

was located. [Id. at ¶ 8]. Byrd struck the Plaintiff’s face with his hand until

the Plaintiff let go of the duty belt. [Id.]. The Plaintiff repeatedly tried to grab

Byrd’s arms, and Cantrell drive stunned the Plaintiff with “minimal effect.”

[Id.].

Cantrell instructed Byrd to use pepper spray. [Doc. 12-2: Byrd Decl. at

¶ 9]. Byrd deployed his pepper spray into the Plaintiff’s face. [Id.]. The

Plaintiff relented, and Byrd and Cantrell were able to push the Plaintiff back

into the cell and close the door. [Id.].

After the Plaintiff calmed down, he was taken to the shower to

decontaminate. [Id. at ¶ 10]. Byrd observed the Plaintiff during

decontamination and he appeared to have no injuries. [Id.].

PCDC Jail Administrator Mark Herman provided the Plaintiff’s inmate

grievances between February 18, 2023 and March 16, 2026. [Doc. 12-3:

Herman Decl. at ¶¶ 2-3]. The first grievance within that time range was

submitted on August 25, 2023; it does not address the incident at issue.

[Doc. 12-5: MSJ Ex (Turnkey Corrections grievance printout)].

IV. DISCUSSION

A. Exhaustion

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

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

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

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

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

correctional facility until such administrative remedies as are available are

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

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

516, 532 (2002). 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).

A prison official has the burden to prove an inmate’s failure to exhaust

available administrative remedies. Jones, 549 U.S. 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 PCDC has a has established a three-step procedure governing

inmate grievances. [See Doc. 12-4: MSJ Ex (Polk County Sheriff’s Office/

PCDC Policies and Procedures, Chapter 700: Programs and Services)].

Except in circumstances not applicable here, inmates are required to file a

grievance within 72 hours of the incident at issue. The shift supervisor then

has five working days to respond, and the inmate has two working days to

appeal. If an appeal is taken, a lieutenant investigates the grievance and

submits a response within five working days; the inmate has two working

days to appeal to the administrator. The administrator has seven working

days to respond. The administrator’s response is final and “and will

constitute exhaustion of the inmate’s administrative remedies.” [Id. at 2, 9].

Here, the Defendant has presented a forecast of evidence that the

Plaintiff filed no grievances addressing the February 18, 2023 incident in

compliance with PCDC policy. The Plaintiff has failed to demonstrate that

he exhausted his claims or that administrative remedies were unavailable

him to do so. Accordingly, the Court concludes that the Defendant is entitled

to summary judgment on the grounds that the Plaintiff failed to exhaust his

administrative remedies.

B. Merits

While the Court concludes that this action is subject to dismissal due

to the Plaintiff’s failure to exhaust, the Court will nevertheless proceed to

address the merits of the Plaintiff’s claims.

1. Excessive Force

The Fourteenth Amendment “protects a pretrial detainee from the use

of excessive force that amounts to punishment.” Graham v. Connor, 490

U.S. 386, 395 n.10 (1989). To prevail on an excessive force claim, a pretrial

detainee must demonstrate only that the force “purposely or knowingly used

against him was objectively unreasonable.” Kingsley v. Hendrickson, 576

U.S. 389 (2015). The standard for assessing a pretrial detainee’s excessive

force claim is “solely an objective one.” Id. In determining whether the force

was objectively unreasonable, a court considers the evidence “from the

perspective of a reasonable officer on the scene, including what the officer

knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham,

490 U.S. at 396). 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 v. Prince George’s Cnty., 302

F.3d 188, 204 (4th Cir. 2002).

The Plaintiff has failed to demonstrate the existence of a genuine

dispute of material fact as to the Defendant’s use of excessive force. First,

the forecast shows that there was a legitimate need for the application of

force. The Plaintiff repeatedly refused direct orders to surrender a towel that

was not allowed in his cell. It was objectively reasonable for the Defendant

to open the cell and to retrieve the towel in light of safety considerations, to

preserve order, and to compel the Plaintiff’s compliance. See Scarbro v.

New Hanover Cnty., 374 F.App’x 366, 370 (4th Cir. 2010) (holding that the

court “must accord due deference to an officer's efforts to restrain a detainee

when faced with a dynamic and potentially violent situation; otherwise, ‘we

would give encouragement to insubordination in an environment which is

already volatile enough’”) (quoting Grayson v. Peed, 195 F.3d 692, 697 (4th

Cir. 1999), abrogated on other grounds by Short v. Hartman, 87 F.4th 593

(4th Cir. 2023)).

It was also objectively reasonable for Byrd to try pushing the Plaintiff

back into the cell, and to strike the Plaintiff with his hand when the Plaintiff

grabbed Byrd’s utility belt, near his taser. See, e.g., Hernandez v. Reynolds,

No. 1:23-cv-755, 2025 WL 1744291, at *4 (M.D.N.C. June 24, 2025)

(concluding that defendants’ actions in applying two closed fist strikes to

plaintiff’s head and taking plaintiff to the ground to restrain him were

“necessary to [restore order and] maintain control”). Similarly, it was

objectively reasonable for Byrd to not intervene when Sergeant Cantrell

deployed a taser in response to the Plaintiff trying to force his way out of the

cell and grabbing Byrd.

The relationship between the need and the amount of force that was

used also weighs in favor of the Defendant. The undisputed forecast of

evidence demonstrates that the Plaintiff refused several direct orders, and

that his resistance escalated during the interaction. The Plaintiff’s escalating

defiance left officers with no option other than to use increasing physical

means to compel his compliance. See Grayson, 195 F.3d at 696-97; see,

e.g., Dale v. FNU Barnes, 1:23-cv-373, 2024 WL 4416440 (M.D.N.C. Oct. 4,

2024) (holding it was appropriate for an officer to use a baton to place the

plaintiff in an arm lock after initial attempts to control the plaintiff with his

hands failed). The undisputed forecast of evidence demonstrates that the

Defendant used force only as necessary to gain control of the defiant Plaintiff

and to restore order.

In sum, no reasonable jury could conclude under these circumstances

that the Plaintiff was subjected to excessive force by either officer. See

Kingsley, 576 U.S. at 396-96. The Defendant’s Motion for Summary

Judgment will, therefore, be granted on the Plaintiff’s excessive force claim.

2. Deliberate Indifference to a Serious Medical Need

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

medical need is properly brought pursuant to the Fourteenth Amendment.

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

claim, a plaintiff must demonstrate that:

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

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

or recklessly acted or failed to act to appropriately address the

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

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

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

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

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

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

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

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

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

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

Brennan, 511 U.S. 825, 836 (1994)). Negligence or the accidental failure “to

do right by the detainee,” however, are not sufficient. Id. at 611-12.

Here, the undisputed forecast of evidence demonstrates that the

Plaintiff was pepper sprayed in the face, that he was escorted to a

decontamination shower when it was safe to do so, and that he did not

appear to have any injuries. As such, there is no forecast of evidence that

the Plaintiff had any serious medical need, that Defendant Byrd knew or

should have known of such a need and disregarded the same, or that the

Plaintiff was harmed in any way. The Defendant’s Motion for Summary

Judgment will be granted with respect to the Plaintiff’s claim for deliberate

indifference.

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).

Here, because the Plaintiff has not presented a forecast of evidence

that the Defendant violated his constitutional rights, the Court concludes that

the Defendant is entitled to qualified immunity. As such, summary judgment

for the Defendant would also be proper on this ground.6

IV. CONCLUSION

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

Judgment is granted, and this action is dismissed. While dismissals for

failure to exhaust administrative remedies are generally without prejudice,

6 Even though Sgt. Cantrell is not a defendant, an examination of the record and the

forecast of evidence shows that no claim against Cantrell, if there were one, would survive

summary judgment for the same reasons as stated herein regarding Defendant Byrd.

See, Nichols v. Bumgarner, ____ F.4th ____, 2026 WL 1084251 (4th Cir. Apr. 22, 2026).

the dismissal in this case will be with prejudice as the Court has concluded

that there is no genuine dispute of material fact regarding the merit of the

Plaintiff's § 1983 claims.

ORDER

IT IS, THEREFORE, ORDERED that the Defendant’s Motion for

Summary Judgment [Doc. 11] is GRANTED, and this action is DISMISSED

WITH PREJUDICE.

The Clerk is respectfully instructed to enter a Clerk’s Judgment in favor

of the Defendant and to close this case.

IT IS SO ORDERED.

Signed: June 9, 2026

Martifi Reidinger ey

Chief United States District Judge AS

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