Ewing v. Silviuos et al

Filing 77

ORDER - Defendant's Motion for Summary Judgment [DE-59] and Plaintiff's Motion for Summary Judgment [DE-68] are DENIED without prejudice to renew. This case is REFERRED to United States Magistrate Judge Webb to establish an expedited discov ery schedule. Additionally, Defendant's Motion to Take Deposition from Plaintiff [DE-62] and Defendant's Amended Motion to Compel [DE-65] are ALLOWED; Defendant's Motion to Compel [DE-63] and Plaintiff's Motion to Amend the Schedu ling Order [DE-70] are DISMISSED as moot; and Plaintiff's Motion for Settlement or Trial Hearing [DE-73] and Plaintiff's Second Motion for Settlement or Trial Hearing [DE-74] are DENIED. Signed by Senior US District Judge James C. Fox on 3/18/2014. Copy mailed to plaintiff. (McDowell, G.)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:11-CV-00064-F
ODELL EWING ,
Plaintiff,
v.
J.A. SILVIOUS, et al.,
Defendants.

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ORDER

This matter is before the court on a Motion for Summary Judgment filed by J.A. Silvious
(hereafter "Defendant") [DE-59] and Plaintiffs Motion for Summary Judgment [DE-68]. Also
before the court are Defendant's Motion to Take Deposition from Plaintiff [DE-62]; Defendant's
Motion to Compel [DE-63]; Defendant's Amended Motion to Compel [DE-65]; Plaintiffs
Motion to Amend the Scheduling Order [DE-70]; Plaintiffs Motion for Settlement or Trial
Hearing [DE-73]; and Plaintiffs Second Motion for Settlement or Trial Hearing [DE-74]. The
issues have been fully briefed and are now ripe for ruling. For the reasons set forth below,
Defendant's Motion for Summary Judgment and Plaintiffs Motion for Summary Judgment are
DENIED without prejudice to renew; Defendant's Motion to Take Deposition from Plaintiff and
Defendant's Amended Motion to Compel are ALLOWED; Defendant's Motion to Compel and
Defendant's Motion to Amend the Scheduling Order are DISMISSED as moot; and Plaintiffs
Motion for Settlement or Trial Hearing and Plaintiffs Second Motion for Settlement or Trial
Hearing are DENIED.
I. STATEMENT OF THE CASE

On February 11,2011, proceedingpro se, Plaintiff filed this action pursuant to 42 U.S.C.

§ 1983 against the following defendants: J.A. Silvious, K. Kinney, and Raleigh Police

Department. See Complaint [DE-l]. The court performed a frivolity review of the case, and on
November 17,2011, the court dismissed the action as frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B). [DE-14.] Plaintiff appealed to the Fourth Circuit Court of Appeals. [DE-16.]
The Fourth Circuit held that this court erred by dismissing Plaintiff's excessive force
claim against Officer Silvious. [DE-20.] The Fourth Circuit noted: "In his complaint, Ewing
alleged that Officer Silvious used excessive force against him by applying pepper spray while he
was handcuffed and by refusing to provide water to wash the spray from his face; he also claimed
to have suffered physical injury." !d. The Fourth Circuit vacated this court's dismissal of
Plaintiff's excessive force claim against Defendant and remanded the case for further
proceedings. !d.
II. DISCUSSION
A. Motions for Summary Judgment
1. Standard of Review

At summary judgment, the court must examine the evidence presented by both parties and
determine ifthere is a genuine issue for trial. Greater Bait. Ctr. for Pregnancy Concerns, Inc. v.
Mayor & City Council of Bait., 721 F.3d 264,283 (4th Cir. 2013). The court examines "whether

the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). Where the moving party shows there is no genuine issue of material
fact, the burden shifts to the nonmoving party to come forward with evidence to demonstrate an
issue of fact exists. Pension Ben. Guar. Corp. v. Beverley, 404 F.3d 243, 246-47 (4th Cir. 2005).
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An issue of fact is genuine if the evidence is such that a reasonable jury could find for the
nonmoving party. Anderson, 477 U.S. at 248. A fact is material if proof of the fact might affect
the outcome of the case under the substantive law. !d. When evaluating the evidence, it must be
viewed in the light most favorable to the nonmoving party. Smith v. Va. Commonwealth Univ.,
84 F.3d 672,675 (4th Cir. 1996). However, "[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, such 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 v. Harris, 550 U.S. 372, 380 (2007).

2. Discussion
In his statement of the events which transpired on March 28, 2008, Defendant states that
he decided to make a physical arrest of Plaintiff for an open container violation and he so advised
Plaintiff. Decl. of Det. J.A. Silvious, ~ 14. In response, Plaintiff stated, "You ain't putting me in
that car. I am not going to jail. You are not sending me back." !d. Defendant then tried to put
Plaintiff in his patrol car, but Plaintiff used his body to shut the door. !d. at ~ 15. Defendant
asserts that Plaintiff advised him that he was never getting into the patrol car. !d.
Defendant contends that he drew his pepper spray and warned Plaintiff that he would use
the pepper spray if Plaintiff did not get into the patrol car. !d.

at~

17. According to Defendant,

he warned Plaintifftwo additional times that he would use pepper spray on him if he did not get
into the patrol car. !d. Plaintiff continued to push against Defendant and stated, "I am never
going to get in that car. You are not going to send me back, I just got out." Decl. of Det. J.A.
Silvious, ~ 17.
Defendant asserts that he applied a "single burst" of pepper spray which lasted

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approximately one second. !d. at~ 18. Defendant contends that Plaintiff immediately got into
the patrol car and sat down. !d. Defendant further contends that he promptly transported
Plaintiff to the closest fire station. !d. at ~ 21. Defendant asserts that at the fire station, water
was turned on and made available to Plaintiff so that he could wash his eyes. !d. at ~ 22.
Defendant states that Plaintiff refused to use the eye station and knocked it over. !d. Defendant
further states that water ran over the ground, and Plaintiff wallowed on the ground in the water.
Decl. ofDet. J.A. Silvious,

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22.

In Plaintiff's version of the events, he alleges that he was in handcuffs the entire time
excessive force was used against him. Def's First Request for Admission to Pl. [DE-59-7], p. 15.
Further, Plaintiff alleges that Defendant used mace on his eyes without any type of warning at
"point blank range." !d.
At the fire department, Plaintiff contends that he was "teased" with the water supply. !d.
at p. 16; Complaint [DE-1-1], p. 15. Plaintiff further contends that he had to spit on the ground
and wipe his face in it in an effort to regain his eyesight. Def's First Request for Admission to
Pl. [DE-59-7], p. 16; Complaint [DE-1-1 ], p. 16. Plaintiff alleges that he had to rub his face on
the wheels of the patrol car to help himself because he was being restrained in handcuffs. Def's
First Request for Admission to Pl. [DE-59-7], p. 16. Finally, Plaintiff alleges that the day after
the incident with Defendant, he had "welps around [his] wrists and red bruises on [his] biceps
near [his] arm pits." !d.
In light of the foregoing inconsistent recitations, the court believes that the record is
insufficient to allow either party's motion for summary judgment. Once more discovery has
taken place, the parties may renew their motions. Accordingly, Defendant's Motion for

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Summary Judgment is DENIED, and Plaintiff's Motion for Summary Judgment is DENIED.
The case is REFERRED to United States Magistrate Judge Webb to establish an expedited
discovery schedule.

B. Defendant's Motion to Take Deposition from Plaintiff
Defendant has moved pursuant to Rule 30(a) of the Federal Rules of Civil Procedure for
an order allowing him to take Plaintiff's deposition. As noted above, the court believes that
additional discovery is necessary. Accordingly, Defendant's Motion to Take Deposition from
Plaintiff is ALLOWED. Defendant may take Plaintiff's deposition at the prison facility where
Plaintiff is housed at the time of the deposition. Defendant has requested that a guard be present
during the deposition, and this request is ALLOWED.

C. Defendant's Motion to Compel and Amended Motion to Compel
Defendant has filed a Motion to Compel pursuant to Rule 37 of the Federal Rules of Civil
Procedure. Specifically, Defendant is moving for an order compelling Plaintiff to produce
documents requested in Defendant's First Request for Production of Documents to Plaintiff. In
his Amended Motion to Compel, Defendant states that after the Motion to Compel was filed,
Defendant's counsel received Plaintiff's second response to the Defendant's First Request for
Production of Documents to Plaintiff. Defendant states, however, that Plaintiff failed to
adequately respond to three of the eight requests.
In light of the foregoing, Defendant's Motion to Compel is DISMISSED as moot.
Further, Defendant's Amended Motion to Compel is ALLOWED. Plaintiff is to produce all
documents sought in Requests 2, 3, and 5 of Defendant's First Request for Production of

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Documents within thirty days. 1

D. Plaintiff's Motion to Amend the Scheduling Order
In his

~otion

to Amend the Scheduling Order, Plaintiff requests that this court consider

his motion for summary judgment. As set forth above, the court has considered Plaintiffs
motion for summary judgment and has determined that the motion is premature. Accordingly,
Plaintiffs Motion to Amend the Scheduling Order is DISMISSED as moot.

E. Plaintiff's Motions for Settlement or Trial Hearing
In his Motions for Settlement or Trial Hearing, Plaintiff requests that this case be set for
trial or a settlement hearing. The court believes that Plaintiffs request is premature.
Accordingly, Plaintiffs Motion for Settlement or Trial Hearing and Plaintiffs Second Motion
for Settlement or Trial Hearing are DENIED.

III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment [DE-59] and
Plaintiffs Motion for Summary Judgment [DE-68] are DENIED without prejudice to renew.
This case is REFERRED to United States Magistrate Judge Webb to establish an expedited

'The specific requests at issue provide:
2. Any and all medical records and reports, including jail and prison records, doctors' office and
hospital records, reports, notes or orders, hospital charts and any other document for any care you
received from 03/28/2005 to the present date.
3. All documents relating to your physical or mental condition from January 1, 2008 to the
present.
5. Documents regarding any claim you have made against correction officers, law enforcement
officers or victims of crimes.

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discovery schedule. Additionally, Defendant's Motion to Take Deposition from Plaintiff [DE62] and Defendant's Amended Motion to Compel [DE-65] are ALLOWED; Defendant's Motion
to Compel [DE-63] and Plaintiffs Motion to Amend the Scheduling Order [DE-70] are
DISMISSED as moot; and Plaintiffs Motion for Settlement or Trial Hearing [DE-73] and
Plaintiffs Second Motion for Settlement or Trial Hearing [DE-74] are DENIED.
SO ORDERED.

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This, the

_jJ_ day of March, 2014.

J~1ES C. FOX
Senior United States District Judge

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