MCFADDEN v. NICKALS et al

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)

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/. L.ee 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