Filing 41

ORDER, MEMORANDUM OPINION, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 3/13/2017. RECOMMENDED that Plaintiff's motion for default judgment (Docket Entry 22 ) be GRANTED IN PART, such that default judgment be e ntered against Defendant Nicholson and Plaintiff be awarded $500.00 for damages incurred by Plaintiff. As to any other relief, it is hereby RECOMMENDED that the motion be DENIED. FURTHER RECOMMENDED that Plaintiff's motion for default judgment (Docket Entry 23 ) be DENIED as moot. ORDERED that Plaintiff's motions to compel (Docket Entries 39 , 40 ) are DENIED as untimely and moot. (Daniel, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA ABRAHAM B. MCFÂDDEN, ) ) Plaintiff, ) ) v 1,:1.4CY664 ) ) MS. NICHOLSON, ) ) Defendant. ) ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This mattet is befote the Court upon Plaintiff Abraham McFadden's motions fot default judgment against Defendant Ms. Nicholson. (Docket Entries 22,23.) Also befote the Court are two motions to compel filed by Plaintiff. (Docket Entties 39,40.) All matters are dpe for disposition. Fot the teasons stated hetein, the Coutt will deny Plaintiffs motions to compel as moot. Furthermore, the Cout will recommend that Plaintiff motion fot default judgment Q)ocket Entry 22) be granted.l BACKGROUND Plaintiff, apro rc ptisonet, filed this S 1983 action against sevetal Defendants tegarding alleged sexual hatassment and tetaliation. Q)ocket Errtty 2.) The undetsigned tecommended dismissal of all claims against all Defendants except Defendant Nicholson. (Docket Entry 3.) Subsequently, a summons was issued for Defendant Nicholson. (Docket Entry 17.) After 1 The Court will recommend that Plaintiffs second motion for default judgment (Docket F;ntry 23) be denied âs moot. 1 failing to ânswer or otherwise respond, Plaintiff sought entry of default against Defendant Nicholson which was granted. Q)ocket F;ntry 20) Thereafter, Plaintiff filed a motion for default judgment which is now pending befote the Court. (Docket Et tty 22; see also F;nty 23,) Several headngs were held tegarding the motion for default judgment' Docket (À4inute Entdes dated 1,1,/1,6/201.6;1,/2a/2017.) The Court then set this mattet for an evidentiary hearing on the issues of liability and damages. (Docket Entty 32) Plaintiff was instructed to bring all evidence of damages tesulting ftom his alleged injuries. (Id.) Prior to the evidentìary hearing, Plaintiff filed two letter motions seeking to compel the North Catoltna Department of Public Safety ("NCDPS") to provide Plaintiff wrth a copy of his medical recotds. (See Docket Entries 34, 35.) On February 15,2017 , an evidentiary hearingwas held. Plaintiff and Defendant provided testimony in this m^ttet z However, Plaintiffls evidence was limited to his personal knowledge as he had rìo âccess to his medical records. The Court theteafter ordered the NCDPS to provide to the Coutt, for in-camerainspection, Plaintiff specifically medical recotds ftom Aptil 201,4 s prison tecotds, through November 201'4, and grievances filed befween March 2014 and Novembet 201,4. (Docket F;nty 37.) Plaintiff subsequently filed two motions to compel video surveillance and dental recotds. (Docket Entries 39, 40.) The Court obtained documents from the NCDPS on March2,2017, and teviewed the recotds for consideration of Plaintiffs motion for default judgment. DISCUSSION Plaintiff seeks default judgment against Defendant Nicholson fot her failure to answer or otherwise respond to his Complaint. Once entry of default has been entered puÍsuant to z Defendant has not sought to set aside entry of default in this m^ttet 2 Federal Rule of Civil Procedure 55(a), Rule 55þ) permits entry of default judgment against properþ served defendants who failed to file responsive plead-ings. In detetmining whethet to enter judgment on the default, "[t]he court must . . . detetmine whether the well-pleaded allegations in fPlaintiffs] complaint suppott the telief sought in this ^ct7on." þan Hometvmingt Fin. Network,253 u. F.3d778,780 (4th Ct.2001) (citation omitted). Additionally, "[i]f the couÍt finds that liability is established, it must then determine damages." -/ dz J Sports Prodr., Inc. a. Romenski,845 F. S.tpp. 2d703,706 CX/.D.N.C. 2012) (citation omitted). In its findings, "[t]he court must mâke an independent detetmination regatding damages, and cannot accept as true factual allegations of damages." Id. Hete, Plaintiffs Complaint alleges the following pertinent facts: Please be advised on 3-1,6-14,I .ilbtaham B. McFadden filed a Grievance on fDefendant Nicholson] concerning sexual harassment. Once this took place fDefendant Nicholson] started a form of retahalon against me and informed other prisoners that I was a snitch . . . On 4-30-1,4 at 12:35 pm I was out in Rec cage with about 18 other pdsoners when I asked [Defendant Nicholson] about my 6 month phone call that I was to be able to make every 6 months due to being on I-Con. \X/hen we began to talk about this she became very angry and began yelling out that I was a snitch and check off. And that I send her snitch notes all the time. She also said I was afraid to go toyard because I was gonna to get beat up. ìØhen I returned to celi, I wtote a grievance concerning this matter and wrote to our Governor Pat McCrory explaining the date and time Due to pefendant Nicholson] making such a concerning this matter statement, this has put my life in great danger, and shortly after her statements, I started receiving threats from othet ptisoners. Due to such threats I filled out dghtful form to be kept in þtotective custody]. This form was signed, and tutned in to fDefendant Nicholson] by Sgt. Hasty. On 4/30/1'4, I found a note up under my door stating thatif I tetutned to yard,I would be stabbed. On this same day, 4-30-1,4 at 8:40 p.m. I gave [the] note to Sgl Hasty and she also have fDefendant Nicholson] the note as well. This fact Sgl Hasty told me she would document if she was asked. Two days aftet fDefendant Nicholsonl made statement on [the] recyard, on 5-1.2-1.4 at8:40 Pm, I was returning ftom showet, when another prisoner sprayed human wâste thtough the side of his cell doot on me and a[n] officer, stating "this is what snitches get." This mater was also documented by my statement and officer's statements. That's when I knew for J sure that returning to yard after release ftom I-Con would be a great danger to me . . . On 7-10-1.4 at 4 pm med. call, I v/as fetufning to my cell when anothef inmate rushed in behind me, and statted beating me in my head with his fist. Once he ran out my cell, I ran out behind him back downstairs. fCorrectional Officer] Hunt told me if I tepotted the mattef, I would get 6 mote months in I-CON . . . ,\gain on7-22-1'4 at med call4:00 p.m. I was getting water for meds fountain, when a guy walked up behind me and stafted beating me in ^twater my head. [Correctional Officer] Monrow and other staff tesponded to this, and sptayed the ptisonef . . . I teceived big knots on my head in back, and at this time I can't get rid of headaches and very bad dizziness . . . ' (Compl. fl V, Docket Entry 2 at3.) The undersigned finds that Defendant Nicholson's failure to answer or otherwise defend against well-pled allegations in Plaintiffs Complaint are deemed admitted. þtan,253 F.3d at 780. However, "^ default is not teated as an absolute confession by the defendant his tiability and of the plaintifPs of rþht to recover." Id. (citation omitted). Thus, it is for the Court to determine whether the facts, as alleged, support Plaintiffs Motion for Default Judgment and the relief sought. Id. (cítatton omitted). Here, the undersigned finds as a mattet of law that Defendant Nicholson's calling Plaintiff a "snitch" in the presence of other prison inmates constituted "deliberate indifferent conduct." In Farrner u. Brennan,511 U.S. 825 (1,994), the Supreme Court held that the Eighth Amendment to the Constitution "imposes duties on þrison] officials, who must ptovide humane conditions of confinement; ptison officials must ensure that inmates receive adequate food, clothing, shelter, and medical cate, and must 'take reasonable measutes to safety of the inmates."' Id. at 832 (citation omitted). A grtaLtafltee the successful Eighth Amendment claim contains two elements: the depdvation must be, objectively, "sufficiently serious," and the pdson official must have demonstrated a "'deliberate indiffererìce' to inmate health ot safety." Id. at 834 (citation omitted). In Farmer, the Supteme Coutt held: 4 [A] prison official cannot be found tiable under the Eighth Amendment fot denying an inmate humane conditions of confìnement unless the official knows of and disregards an excessive dsk to inmate health and safety; the official must of facts from which the inference could be drawn that a both be ^waïe substantial dsk of serious harm exists, and he must also draw the inference. This approach compofts best with the text of the ,{.mendment as our cases have interpreted it. Id. at837. "Deliberate indifference is avety high standarð-a showing of mere negligence will not meet it." Graltson u. Peed, 195 F.3d 692, 695 (4th Cir. 1,999). Rathet, the "deliberate indifference" ptong requires Plaintiff to make "two showings:" First, the evidence must show that the official in question subjectively recognized a substantial risk of harm. It is not enough that the offìcets thoald haue rccogntzed it; they actually must have perceived the risk. Second, the evidence must show that the official in question subjectively recognized that his actions v¡efe "inapptopriate in light of that dsk." Âs with the subiective awareness element, it is not enough that the official shoald haue recogtized that his actions were inappropriate; the official action mmt høue recognized that his actions were insufficient. Pørrish ex re/. u. Cleueland,372F.3d 294,303 (4th Cir. 2004) (citations omitted) (emphasis in odginal). "Obduracy or wantonness, not inadvertence oÍ good faith eror, chatactetizes deliberate indifferenc e." Gibson u. Fo/4 963 tr .2d 851, 853 (6th Cir. 1,992) (citation omitted). The well-pleaded factual allegations in the Complaint demonstrate that Defendant called Plaintiff a "snitch" assaulted in the presence of other inmates which tesulted in Plaintiff being on two occasions. It is not uncommon fot inmates deemed "snitches" to likely be beaten by other inmates. 21,32794, ât x3 See e,!., Cøllen u. Somerset C4r., No. CIV. A. \X/À4N-10-0055, 2010 WL (D. Md. May 25,2010) (unpubl-ished) ("Many courts have held that a S 1983 claim can stand against a prison official who spteads a tumor thart an inmate wâs a'snitch,' knowing that the inmate would ptobably be beaten by other inmates."); l{orthington 5 u. Marin, 1,02F.3d 1564,1569 (10th Crï. 1,996) the magistrate found, rumors about snitches to be snitches will ptobably be beaten[.]"); Miller u' spread rapidly and inmates rumored I-,eathers,9L3 F.2ð,1085, 1088 ("[4r n.1 (4th Cir. 1990) ("It is impossible to minimize the possible consequences to a ptisoner of being labelled a 'snitch."'). In the ptesent case, the undersigned fìnds that Defendant Nicholson's conduct of labeling of Plaintiff as a "snitch" constitutes "deliberate indifference" to the rights of Plaintiff, a violation Benefetd a. McDowatt, 241, F.3d 1267, 1.271, a of the Eighth Amendment. (10th Cir. 2001) ("plabeling an inmate a snitch satisfies the Faryner standard, and constitutes deliberate indifference to the safety of that inmate."). Thus, liability has been established against Defendant Nicholson. The issue now temaining is the amount of Plaintiff s damages. Once liability has been estab]ished, the Court must detetmine the amount of damages owed to Plaintiff. The Prison Litigation Reform Act sets fotth limitations when determining the amount of damages a ptisonet may recover in civil actions. states that See 42 U.S.C. $ 1997e(e). It "[n]o Federal civil action may be btought by a prisoner confined in aiall, prison, ot other correctional faciltty, for mental ot emotional injury suffered while in custody without prior showing of physical injury[]" Id. Thus, a showing of more than de a minini¡ physical injury could result in compensatory damages, and"la] plaintiffs inability to prove out-of-pocket loss or monetary harm does not lsar a claim fot compensatory damages under S 1983." OxendineBtJ ,. Harihan, No. 5:12-CT-03084-FL, 2015 ìfL 5331809, at x7 (E.D.N.C. July 22, 201'5) (unpublished), report and retummendation adopted, (E.D.N.C. Sept. L4, 201,5) (unpublished). compensatory damages, courts look "[]n No. 5:12-CT-3084-FL, WL 5330571 detetmining the propriety and amount of to factots such as loss of 6 201'5 esteem, physical injury, psychological counseling,loss of income, the degree of distress, the context of the undedying events, corroborative evidence, the nexus between the challenged conduct and the distress, and mitigating circumstances." Carrington u. Easley No. 5:08-CT-31,75-FL,201'1WL21'32850, at *4 (E.D.N.C. May 25,201.1) (unpublished) (citation omitted). Ì Here, the Cout has considered the testimony of Plaintiff concerning his injuries suffered in the assaults alleged in the Complaint. The Coutt has also reviewed and considered the medical records of Plaintiff submitted fot in carllera inspection along with the Complaint. Plainuffs medical records cleady show that he complained of headaches from being assaulted on two occasions inJuly 201.4, consistent with the allegations in the Complaint and his hearing testimony. Plaintiff did not testi$r to any medical expenses that he incurted not is thete evidence of medical bills in his prison file. Thete is also no evidence that Plaintiff was earning any wâges or other income that he lost as a tesult of not being able to work. Plaintiffs hearing testimony was that he was not working at the pdson unit whete he was housed at the time he was assaulted. As to pain and suffering, Plaintiff alleges in his Complaint and testified that he had knots on his head and experienced bad headaches and dizziness âs a result of the assaults. It is undisputed that Plaintiff was treated for these injuties. Plaintiff testified that X-tays were taken of the area under his eye on October 22,21.04, and that the X-rays showed evidence a of broken bone under his eye. He also testified that he was told it was an old injury. Nothing in the medical tecotds substantiate Plaintifls testimony regarding a btoken bone under his eye. The medical records tend to corrobotate that Plaintiff sustained an injury to the back of his head causing bad headaches as a tesult of the assaults alleged in the Complaint. Therefore, 7 the Plaintiff has proven through his testimony and the medical tecotds, the connection between the assaults upon him, the resulting injuries and, damages he incurted. After reviewing the tecord and considedng the appropriate factors when determining damages, the Court concludes that Plaintiff is entitied to tecovet against Defendant Nicholson' Here, where plaintiff has proven liability by a preponderance of the evidence, Plaintiff is entitled to compensation for compensatory damages fot his acf¿aI losses. Merzphis Crnfl. Di:t.u.Stachara,417U.S.299,308-09(1986). Sch. TheCourtftstnotesthatPlaintiff,asaninmate in the custody of the NCDPS, has no out of pocket expenses fot medical bills for treatment he incurred. Second, Plaintiff testified at the evidentiaty headng that he did not have a paid job at Scotland. Therefore, he is not entitled to receive reimbutsement for lost wages. Next, Plaintiff does not allege nor seek other out of pocket damages that one might incut if he was not incarcerated such as travel expenses to and fiom the doctor for treâtment. Plaintiff did not allege he was entitled to punitive damages, and after considering the ptopriety of awarding punitive damages, the undersigned tecommends that none be granted. Plaintiff does allege and also testified to the physical injuries he received and the resulting pain and suffering arising from the conduct of the defendant. Plaintiff has proven that he sustained zctual injury, including a blow to the back of his head that caused him to bleed and headaches which were corroborated experience bad by his medical treatment records. 'I'he undetsigned recommends that PlaintifPs actual damages, including for pain and suffering, entitle him to $s00.00. Plaintiffs complaint also seeks relocation to a safe area. Plaintiff has been üansferred to another prison and therefore this request is moot. FIe seeks medical treâtment for his I injuries. f'he medical records demonstrate Plaintiff was tteated for his injuries multiple occasions. Therefore, this request is also moot. Þ'inally, Plaintiffs Complaint requests the Court to identifii all constitutional rights in this matter. In the memorandum opinion, the Court has identified the constitutional provision and case law that supports the Court's decision. Therefore Plaintiffs request that the Court identify all constitutional rþhts in this matter is also moot. As to Plainuffs additional motions to compel filed after the Februa;ry 15, 2017 evidentiary hearing, (Docket Entries 39 and 40) the Court finds that they are untimely and also moot. Thus, both motions will l:e denied. CONCLUSION F-or the reasons stated above, IT IS HEREBY RECOMMENDED morion for default judgment (Docket tr.rtty 22)l>e GRANTED that Plaintiffs IN PART, such that default judgment be entered against Defendant Nicholson and Plaintiff be awarded $500.00 for damages incurred by that the motion be Plaintiff. As to any othet telief,IT IS HEREBY RECOMMENDED DENIED. IT IS FURTHER RECOMMENDED (Docket E.,t y 23)be DENIED as moot. IT IS FURTHER ORDERED 39,40) are DENIED as that Plaintifls motion for default judgment that Plaintiffs motions to compel (Docket Entties untimely and moot. L fi"ebcter $tntcr M4gi*trnte Jurlgp Match 1.3,2017 Durham, North Caroltna 9

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