Filing 45

ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 5/26/2017; that Defendants' Motion for Summary Judgment (Docket Entry 30 ) be DENIED. ORDERED that to the extent Plaintiff seeks additional time to obtain discovery responses (docket Entry 43 ), the request is DENIED. (Sheets, Jamie)

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IN THE UNITED STATES DISTRICT COURT FOR THB MIDDLE DISTRICT OF NORTH CAROLINA QUE,NTIN ODELL MATHIS, Plaintiff, V J.A. MILEM, et. al., Defendants. ) ) ) ) ) ) ) ) ) '1,:1,5CY21,5 ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE TUDGE This matter comes befote the Coutt upon Defendants Steven L. Hopkins and John L. I(empfs motion for summary judgment. (Docket Etrtty 30.) Also before the Courtis Plaintiff Quentin Mathis's letter document, which inpatt, appeârs to be a motion for an extension of time to obtain discovery. Q)ocket Entry 43.) All matters are dpe for disposition. For the following teasons, the Coutt will deny Plaintiffs motion for an extension of time to obtain discovery, and tecommend that Defendants'motion for summary judgment be denied. I. PROCEDURAL BACKGROUND On March 1.1., 201,5, Plaintiff, a pro æ ptisoner, fìled a Complaint asserting that Defendantsl used excessive force upon Plaintiff after conducting a routine and scheduled search at the Rowan County Detention Center. (See generalþ Compl., Docket F,ntry 2) Defendants Hopkins and I(empf thereafter fìled an Answer @ocket Entry 16) and the Court t A third Defendant, J.A. Milem, has not been served in this mâtter. entered a discovery order in this mâtter. (Docket Entry 18.) The completion date of all discovery was October 10, 201,6. (Id) Plaintiff subsequently filed an ,\mended Complaint which was stricken for failure to comply v¡ith the LocaI Rules and Federal Rules of Civil Procedure. (Text Or¿., dated g /1,2/201,6; re see alsoDocket Ent y 21,.) Inlight of Plai naf?s þro ptisonet status, the Court did allow Plaintiff additional time to file a proper motion for leave to amend his Complaint. (Iext Otdet dated 9/1,2/201,6.) Plaintiff filed subsequent motions for leave to amend, and fot an otdet compelling discovery. (Docket Enuies 23,24.) On Novembet 8, 201.6, Defendants Hopkins and I(empf filed their motion judgment. pocket Entry 30.) Thereafter the Court ded for summa{y upon Plaintiffs motions. (Text Order dated 1,2/21/2016.) In particular, the Court ordered that Defendants respond to Plaintrffls request for certain documentation and the video of the alleged assault. (1/.) As to interrogatory requests, the Coutt further instructed Plaintiff to submit to Defendants "a one (1) page document cladfying exact interrogatory questions Plaintiff seeks to ask Defendants." Qd.) It futther stated that"Pluntiff shall have until Wednesday,Januaty 11,2017 to submit those questions." Qd.) On January 26,201.7 , Defendants fìled a status teport indicating their compliance with the Coutt's December 201,6 Order. (Docket Entry 38.) Defendants also infotmed the Court that they nevet received a clarificatson of the intettogatoty questions ftom Plaintiff. (Id.) Shottly theteafter, Defendants received Plaintiffs intetrogatory requests, and filed objections for untimeliness and Plaintifls failure to comply with the Coutt's insttuctions. pocket Entry 39.) Plaintiff filed a response indicating that he fìled the intettogatories with the Court before 2 theJantary 11,2017 deadline. (Docket Ent y 40.) However, no such record is apparent from the Court's record. Defendants thereafter reasserted their motion for summary judgment @ocket Entry 42) and Plaintiff fìled a response seeking, in patt, additional time to obtain discovery responses. (Docket Entry 43.) The Court will deny Plaintiffs request. Plaintiff failed to comply with the Court's previous Order in that he failed to timely submit to Defendants "a one (1) page document clari{ring exact interrogatory questions Plaintiff seeks to ask Defendants." (Text Otdet dated 1,2/21, /201,6.) Moreover, Plaintiffs hck of compliance is prejudicial to Defendants and also hinders the Court in its efforts to dispose of this matter in the most efficient manner. As such, in making the tecommendation hetein upon Defendants'motion fot summary judgment, the Coutt will consider evidence now before the Cout. II. FACTUAL BACKGROUND In his Complaint, Plaintiff asserts that on December 29, 201.3, Defendant l{empf entered the detention center dorm at apptoximately 9:00am to conduct a routine search. (Jeø generalþ Compl., Docket E.ttry 2 at 5.) After all detainees were asked to move to the ftont of the dorm, Defendant I(empf "singled out" Plaintiff and asked him what was in his pocket. (Id.) Plaintiff tesponded, "My radio, why what's going on?" (Id) Defendant I(empf then insttucted Plaintiff to place his tadio on his bed and to move back to the front of the dorm. (Id.) Defendant l(empf told all detainees that no personal items could be taken from the dorm. (Id.) Plainttff then asked if the detainees were leaving the dorm and Defendant l(empf allegedly replied, "Shut up! A.nd follow the order!" (Id.) Plaintiff proceeded to remove his 4 J shower shoes and put on his tennis shoes, at which point he was approached by l)efendant I(empf who yelled, 'ulake them offl" (Id) Plaintiff stated that no policies prohibited him ftom wearing his shoes, and Defendant I(empf tesponded, "Ok, get in hne." (Id.) Plaintiff alleges that the detainees were then taken to the storage room behind the control toom for apptoximately thirty minutes while the dotm search was executed. (Id.) Defendant I(empf returned to the storage toom and told Plaintiff and another inmate (Gibson) to step into the hallway. Qd.) Plarnnff followed behind inmate Gibson and stepped into the hallway where another officer, I(evin M. Holshouser ("Holshouser"), was also standing. (Id.) Defendant l(empf then informed Plaintiff that he was being moved to another unit and that he would find out why he was being moved "once he got thete." (Id.) Plunttff then asked Officer Holshouser what was going on and Plaintiff was told that he was being "locked down for contab^nd." (Id.) Plaint:ff asserts that without warning, Defendant I(empf then shoved Piaintiff, and "gtabbed fPlaintiffl by the arm and throat atea, hitting fPlaintìffl in the jaw [and] face tackled Plaintiff ^te^." (Id. at6.) Plaintiff tried to defend himself. (Id.) Defendant I{empf to the floot, "punched fPlaintiffl in the face and rlb area, [and] squeezed fPiaintiffl in his lower pdvate parts causing an instant pain." (Id.) Plaintiff futhet alleges that he laid "flat on the ground with his hands placed on his head, while asking offìcets to stop the assault by fDefendant I(empf]." (Id.) Defendant Hopkins "started shocking fPlaintiffl repeatedly with the Taser gun while being placed in handcuffs." (Id.) Plaintiff asserts that Defendant Hopkins shocked Plaintiff thtee mote times with the Taset gun while Plaintiff was in handcuffs. (Id.) Defendant i(empf also "placed his 4 knee in fPlaintiffs] head appþing pressure with his entire body weight ptessing down on the temple arca of fPlaintiffs] head causing more pain." (Id.) Âccording to Plaintiff, another officer arrived and told Defendant l{empf to get off Plaintiff. (Id.) Defendant I{empf complied, then started pulling Plaintiffs hau. (Id.) Defendant I(empf teceived furthet otdets to move away from Plaintiff before he ceased use of excessive force. (Id.) Plaintiff theteafter filed a "force report" and requested to Ftle a complaint against Defendants l{empf and Hopkins. (Id.) Plaintiff states that the gdevance wâs not located in his Inmate File when he asked for a copy of witnesses it. (Id.) OnJanuary 3,201.4, Plaintiff requested fot his disciplinary heating sutrounding the incident. (Id. at 7 .) Plaintiffls hearing was held sevetal days later vrith two Plaintiff indicated that he wanted aIl of the thtee witnesses which Plaintiff tequested. Qd.) of his witnesses present. (Id.) Platntiff thereafter filed a grievance with regatd to the headng. (Id.) He appealed the initial response fot his gtievance, but did not receive ^îy futhet response. (Id) Also, Plaintiff was asked to sign a property sheet, but refused because he stated that it was inaccurate. (Id.) Once Plaintiff returned from the segregation unit, Plaintiff noticed some of his items missing. (Id) Plaintiff also wrote a gtievance about his missing property and alleges that all of his items were nevet recovered. (Id.) Lasúy, Plaintiff complained of his inability to send or teceive mail while in the segregation unit, which is the policy at the Rowan County Detention Center. (Id.) Plaintiff seeks a declatation that his constitutional rights have been violated, an injunction against Defendant J.A. Milem, and compensatory and punitive damages against all Defendants. Qd. at 4.) In support of their motion for summary judgment, Defendants have submitted their 5 affidavits along with the affidavits and declatations of Rowan County Detention Officets Holshouset and Mandy D. Tew, andJall Nurse Tammy E.rry 31-2; Steven L. Hopkins .,A.ff., Yon. flohn L. I(empf Aff., Docket Docket E.rtty 31-3; I(evin M. Holshouser Aff., Docket E.rttT 31,-4;Mandy D. Tew Decl., Docket E.rtry 31,-5;Tammy Yon Aff., Docket Entry 31,-6.) Beyond the fact that the officers wete conducting a toutine search of the dotm on Decembet 29,201,3, the parties differ in opinion as to whât happened dudng the incident. Defendants I(empf and Hopkins, and Officet Holshouset all assisted in conducting the seatch of the dorm. (I(empf Aff. tf 3; Hopkins Aff. fl 3; Holshouser Aff. 1[3.) Defendant I{empf states that Plaintiff "became verbally argumentative with fofficers], telling fthem] that ftheir] inspection was 'bullshit'and that [they] had no right to wake the pdsoners up to perform the inspection." ((empf Aff. fl 3.) The prirorr.rr, including Plaintiff, were removed ftom the areaand placed in the Day Room behind the Contol Room until the search was complete. (I(empf Aff. fl 3; Holshouser Aff. tf 3; Hopkins Aff. tf 3.) Duting the course of the seatch, Plaintiff and anothet prisoner wete both found to be in possession of contraband. ((empf Âff. Aff. packet and a quarter. (I(empf T 3; Hopkins Aff. I 3.) Plaintiff was in possession of a salt 1[ 3; Holshouser Aff. I3.) Plaintiff and the othet prisonet wete removed from the secuted room and informed by Defendant I(empf that they were being moved to Pod 2 (administrative segregation). (I(empf Aff. tf 4; Holshouser Aff. 114; Hopkins Aff. T 4.) At this point, Officer Tew was also assisting the other officers, and witnessed Defendant l(empf tell the pdsoners that they were being moved to another unit. (Tew Decl. fl 3.) Plaintiff 6 refused to move and asked why he was being locked 'll 3.) down. (I(empf Aff. T 4; Holshouset Aff. fl 4; Hopkins Âff. fl 4, Tew Decl. Defendant l{empf tesponded that he would tell Plaintiff after he attived at Pod 2. (I(empf ,A,ff. T 4; Holshouser Âff. fl 4; Hopkins Aff. fl 4, Tew Decl. fl 3.) Plaintiff continued to refuse Defendant l(empfs otders and Officer Holshouset then told Plaintiff that he was being moved for possession of contraband. (Hoishouset Aff. fl 4; Hopkins Âff. fl 4.) Plaintiff continued to tefuse the officers' commands, and Defendant I{empf then "took fPlaintiffJ by the atm to guide him to Pod 2 and otdeted him to move along." (I(empf ,A.ff. I 4; see also Holshouser Aff. fl 4; Hopkins Aff. fl 4, Tew Decl. fl 3.) Defendant I(empf asserts that he then reached forPlaintiffs shoulder, "but fPlarutiffl was able to move away." ({empf Aff.'11 4.) Defendant l(empf reached towards his belt to retrieve his Taset, but was punched in the left side of his face by Plaintiff. (I(empf Aff. T 4.) The othet officets also observed Plaintiff pulling away from Defendant l(empf and suddenly punching him in the face. (Holshouser Aff. 1[4; Hopkins Aff. 1[4, Tew Decl. !f 4.) Plaintiff then pushed Defendant l(empf backwatds, knocking Defendant Hopkins against the wall. (I(empf AfflI4; Hopkins Aff T 4; Tew Decl. fl 4.) Offìcet Holshouser then grabbed Plaintiff atound his waist, placed his right foot behind Plaintiffs foot, and threw Plaintiff ovet his dght shouldet and onto the floot. (Holshouser Aff. tf 5; I(empf Aff., fl Hopkins A.ff. I 5; Tew Decl. 5; fl a.) Officer Holshouser grabbed Plaintiffs arm and attempted to pull it behind his back so that the officets could handcuff him. (Holshouser Aff. fl 5.) However, Officet Holshouser was unable to gain control of Plaintiffs ârm. (1/.) During this time, Defendant I(empf was underneath Plaintiff on the floor, and Defendant l(empf 7 tepeatedly ordered Plaintiff to stop biting him. (I(empf Defendant I(empf freed his right hand þoth Aff. '1T 6; Holshouser Aff. I 5.) A.s hands were pinned between his body and Plaintiffs body), Plaintiff continued to bite Defendant I(empf. (I(empf Aff I 6.) Defendant I(empf then used his dght arm to push Plaintiffs head back, and Plaintiff bit Defendant I{empf agai". Qd.) Defendant I(empf admits that he gtabbed Plaintiff by the hait to stop him from biting Defendant l(empf and spitting at him. (Id n7 .) Also duting this time, Officet Holshouser yelled for Defendant Hopkiris to use his Taset in order to gain control of Plainuff. (Holshouser Aff. !f 6.) Defendant Hopkins deployed his Taser in dtive-stun mode (direct conta;ct for. pain compliance only) to Plaintiffs legs. (Hopkins Aff. T 5; Holshouset Aff. fl 6; Tew Decl. tf 5.) Defendant Hopkins otdered Plaintiff to place his hands behind his back, and Plaintiff begin to swipe at the Taser and kick at Defendant Hopkins. (Hopkins Aff. I 5.) Defendant Hopkins applied several more drive stuns to Plaintiff, and the offìcers wete ultimately able to gain control of Plaintiff and secure his wtists with handcuffs. (Holshouser,A.ff. I6; Hopkins Aff. T 5; Tew Decl. Jf 5.) Defendant Hopkins asserts that he did not use his Taser against Plaintiff after he was handcuffed. (Hopkins Aff. I5.) Defendant l(empf and Officer Holshouser assisted Plaintiff to his feet and escorted him to Pod2,whete they placed him in a cell. (I(empf Á.ff.'llB; Holshouser Aff. T 7.) Due to Plainuffs belligerent attitude, Plaintiff remained in handcuffs until he eventually calmed down. (Holshouser Aff. fl 7; Hopkins officers. (I(empf Aff. I -A,ff. tf 6.) Plaintiff did not complain of any injudes 8; Holshouset Aff. fl 8; Hopkins ,A.ff. fl 7; Tew Decl. fl 8 to the 7.) Plaintiff was prompdy evaluated by Nutse Yon, who determined that Plaintiff had not suffeted any signifìcant injuries. (Yon Decl. fl 3; Holshouser Aff I 8.) Plaintiff did have a small abrasion to his lower lip and a small bruise in the middle of his forehead. (Yon Decl. I 3) Neither requited treatment. (Id.) X-rays were taken of Plaintiffs tibs and rþht hand which retutned negative for fuactures or injuries. (Id. fl 4.) Plaintiff only teceived Ibuprofen before returning to his cell. Qd.) Defendant l(empf was also seen by Nurse Yon. (Id. n 5.) He was bleeding ftom wounds undet his right eye and cheek. (Id. \ 5; see al¡o l(empf Aff. Hopkins Aff. (Yon Decl. I 1T 8.) Nutse Yon disinfected the wounds, but 5.) Defendant I(empf treatment. (Id;l{empf Aff. \¡/âs then sent I 9; Tew Decl. fl 7; additional car.e was necessary. to the local urgent care facihty for further I9.) On ,â,pril 30,201,5, Plaintiff was convicted in Rowan County Supedor Court of the offenses of Assault Inflicting Serious Injury upon a Law Enforcement Officer (Defendant I(empf), a Class F felony, and Assault upon aLaw Enforcement Officer (Defendant Hopkins), a Class A1 misdemeanor (these chatges being consolidated for judgment as Docket # 1,3057672), in connection with the December Complaint. (I{empf Aff. fl 10; Hopkins Aff. 29,201,3 incident referenced in PlaintifÎs '|l|T9.) Defendants l{empf and Hopkins also provided a CD-ROM containing recotded video surveillance camerà footage from the incident. (I(emp Aff. Ex. B; rce alsoDocketBntty 32) Defendant l(empf attests that he is the male officer in the video that is punched by Plaintiff and subsequently on the floor underneath Plaintiff. (I(empf. Aff. states that he is the shott, thin male officer 1[ 1,2.) Defendant Hopkins in the video without a baseball cap who can be 9 seen crouching on the floot behind Officet Holshouser administeting Taser shocks and latet handcuffing Plaintiff. (Hopkins Aff.1[ 12.) Officer Holshouser states that he is the officer wearing the baseball cap. (Holshouser Aff. I 10 ) Officer Tew states that she is the female officet placing the clipboatd on the floot and theteafter tesponding to the sttuggle between Plaintiff and the othet officets. (Tew Decl. lT 9.) Defendants I(empf and Hopkins, and Offìcer Holshouset indicate that Plaintiff is the African-A.merican prisoner with "dteadlock" style hair. (I(empf Âff.11,2; Hopkins Aff.'1112; Holshouser Aff. 1T10 ) The Coutt's viewing of the hallway video footage2 suggests the following: At the start of the footage, three male officets þresumably l(empf, Holshouset, and Hopkins) are seen enteting from the right side of the hallway and walking across to an adiacent hallway/room.3 (Vrdeo timestamp 00:02-9.) A female officer þtesumably Tew) then entets the hallway from the right side with a clipboard in her tight hand and proceeds to walk across to the adjacent hallway/room. ffideo timestamp 00:1,7-24.) She temains pattally visible for several seconds, then comes back into plain view of the video. (Video timestamp 00:24-38.) Officer Tew temains facing the adjacenthallway/room for sevetal seconds. ffideo timestamp A few seconds later, a prisoner enters the main hallway from the adjacent Tewis 00:38-52.) area, and Offìcer seen walking towards the camera. (y'ideo timestamp 00:53-01:02.) As Officet Tew walks back towatds the prisoner, another inmate þtesumably Plaintiff) suddenly âppears from the adjacenthallway/room, backing up into the main hallway. (Video 2 The video footage is apptoximately 2 minutes and 54 seconds. The video recording is without sound. 3 The adiacenthalTway f rcom is not in the view of the camera. 10 timestamp 01:03-7.) The video suggests that one of the officer's (Defendant l(empfls) dght hand is outstretched towards Plaintiffs uppet chest/shoulder arca as Plaintiff is walking backwards into the hallway. (Video timestamp 01:07-8.) As Defendant l{empfs hands move down towatds his belt area, Pluntiff suddenly lunges at Defendant l(emp f and, strikes him. (Video timestamp 01:07-10.) At this point, both Defendant l(empf and Plaintiff are out of the view of the c merl- (in the area of the adjacenthallway/room). (Video timestamp 01:10.) Officer Tew then runs towatds the adjacenthallutay/rooms and is momentadly out of the view of the cameîa'. (Video timestamp 01,:1,1,-1,2.) Immediately theteafter, Offìcet Tew tetutns to the main hallway, and the video footage suggests that a sttuggle ensues between Plaintiff and the officers. (Video timestamp 01:1,1,-34.) It appears that one offìcer is beneath Plaintiff, and two additional officers are attempting to get control of Plaintiff. (Video timestamp 01,:1,6- 28.) At some point, it appears thataTaser is deployed, and one officer þresumably Defendant Hopkins) is then seen placing something back in his belt. (Vrdeo timestamp 01:22-39.) At this point, Plaintiff appeârs to be þing on his stomach as the officets ate attempting to secure Ptaintiff. (r'ideo timestamp 01:40-02:04.) assisted Several seconds later, it appears that Plaintiff is off the floor by two officers and escotted away in handcuffs. fr'ideo timestamp 02:27 - 40.) In opposition to the motion fot declarations and affidavits: summary judgment, Plaintjff has also filed several Plaintiffs affrdavit, the declatation of Dadus Smotherson, and the declaration of l(evin Toomet. (A4athis Aff., Docket Entry 36-2; Smotherson Decl., Docket Etttry 36-3; Toomet Decl., Docket E.ttty 36-4.) Plaintiffs afftdavit essentially teasserts the 1,1, stâtement of claims as set forth in Plaintiffls Complaint. 2.) (See Mathis A.ff., Docket Entry 36- According to Toomer's declaration, he was present on December 29,201,3, when the routine dorm search took place. (foomer Decl., Docket E.ttry 36-4 at 2.) Toomer states that Defendant I(empf was "yelling and being very aggressive towards fPlaintiffJ over his shoes and tadio." (Id.) ïØhen the prisoners were placed in the room behind the Conttol room, Toomer states that he could see Defendant l(empf thtough the window. (Id.) He saw the officets go to the booking area, and Toomer stated that Defendant I(empf was "popping his knuckles and rotatfing] his neck and shaking his arms like he was getting loose befote exercising." (Id.) Defendant l(empf then came into the storage room to call Plaintiff and anothet inmate into the hallway. (Id.) Defendant l(empf shut the door of the stotage room. (Id.) Toomer saw Plaintiff and Officer Holshouser talking, then "I{empf shoved fPlaintiffl in the upper shouldet arca andin the jaw area." (Id.) Toomet witnessed Plaintiff and Defendant I(empf fighting each other. (Id.) Toomer funher states that Officer Holshouser "gtabþed] them both and pullfed] them to the floor." (Id.) At that point, Defendant Hopkins started shocking Plaintiff and continued to use the Taser aftet Plaintiff had submitted to the officers. (Id.) Toomer believes that Defendant Hopkins shocked Plaintiff at least nine times and continued shocking him while offìcets were handcuffing Plainttffl (Id.) According to Darius Smotherson's declaration, he witnessed Plaintiff being placed in cell in Pod 2. (Smothetson Decl., Docket Ent y 36-3 at2.) Smotherson, a an inmate, states that Plaintiff remained in the cell fot thtee hours in handcuffs before an officer removed them. Qd.) He futthet stâtes that Plaintiff was in pain, had several marks on his face, and "some of 72 his [dteads] where dpped out in the front patt of his head." (d.) The next day, Smothetson noticed that Plaintiff was swollen and reported it to the officer on duty. (1/.) Smothetson told Plaintiff that he would send mail to his family in Smotherson's name since the detention center prohibited inmates on lockdown from sending or receiving received mail ftom mail. (Id. at 3.) Smotherson Ptaintiffs farrnly. Qd.) Plaintiff has also submitted sevetal documents, includ-ing a Notice of Disciplinary Restrictions which indicates that inmates may not send or receive mail while in the administrative segregation unit. Q)ocket E.ttry 36-5.) ,{.dditionally, Plaintiff submitted a copy of an Inmate Request Form where Plaintiff sought to file a complaint against Defendants I(empf and Hopkins. (Docket Entry 36-6.) Plaintiff also filed a Lock Down Notifìcation Fotm and sevetal documents related to his discipl-inary hearing. (Docket Entdes 36-7 ,36-8.) III. DISCUSSION Defendants I(empf and Hopkins have moved fot summary judgment in this matter. Q)ocket Entties 89, 117.) Summary judgment is appropriate when there exists no genuine issue of materíal fact and the moving party is entitled to judgment as a matter of law. Fed. R. + In his opposition brief to Defendants I(emp and Hopkins' motion for summary judgment, Plaintiff also states that he "moves for summary judgment against DefendantJ.A. Milem." (Docket Entry 36 at 1.) The Court notes that any such motion is untimely ¿nd should not be considered. Moreover, DefendantJ.Â. Milem has not been served in this action; thus, a motion for summary judgment against hrm is improper. Owens u. Buher,No. 5:15-CT-3033-FL,201,5 WL 1,824639, at*3 @O.Ñ.C. Apr.22, 2015) (unpublished) (denying plaintifPs motion for summary judgment as prematute because "defendants have not yet been sewed with a copy of the summons and complaint"); Scible u. Steward, No. 1:08CV100, 2009 WL 87427, at*1.5 (l.t.D.ì7. Ya. Jan. 13,2009) (unpublished) ("At the time the platntiff filed his motion for summary judgment, the defendants had not yet been sewed with a copy of the complaint and no tesponsive pleading had been filed. Accordingly, the plaintiffs motion was frled prematurely."). 13 Civ.P.56(c); Zahodnicku. Int'lBa¡.MachlCorþ.,135F.3d911,91,3 (4thCit. 1,997). Thepatty seeking summary judgment beats the initial butden of coming forwatd and demonstrating the absence of a genuine issue of r'-:rzterialfact. Temkin u. Frederick Cl1. Conn'rs,945tr.2d71,6,71,8 (4th Cir. 1991) (citing Celotex u. Catrett,477 U.5.317,322 (1986). Once the moving party has met its butden, the non-moving party must then afÍtmatively demonsttate that there is genuine issue of material fact which requires trial. Matsusltita Elec. Indal Co. u. Zenith a Radio Corp.,475 U.S. 574,587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving p^rq fot a fact finder to return a verdict for thatparq. Liberry L,obfu, Inc., 477 U.5. 242,250 (1,986); Slluia Deu. Corþ. u. Caluert Coanfl, 81,7 (4th Anderson u. Md.,48 F.3d 810, Cir. 1995). Thus, the moving p^rq can bear his burden either by presenting affrmanve evidence or by demonstrating that the non-moving party's evidence is insufficient to establish his claim. Celotex, 477 U.S. at 331, (Brennan, J., dissenting). When making the summarT judgment detetmination, the Court must view the evidence, and all justifiable inferences from the evidence, in the light most favotable to the non-movingpairry. Zahodnic/<, 135 F.3d at913;Haþerin u. Abaca¡Tech. Corp.,128 F.3d 191,1,96 (4th Cir. 1,gg7). Howevet, the party opposing summary judgment m^y not rest on mere allegations or denials, and the court need not consider "unsupported assettions" corroboration." Euans u. Anderson, 477 U.S. ^t Techs. or "self-serving opinions without objective Application¡ dy Sera. Co., 80 F.3d 954,962 (th Cu. 1,996); 248-49. Flere, Plaintiff is a pro lz litigant; thus, his pleadings are to be libetally construed. Graham u. Geneua Enters., Inc., 55 F. App'x 135, 136 (4th Cit. 2003). Defendants hete seek to rely, in part, upon video evidence in suppott of their motion 1,4 for summary judgment. "ffihen a video 'quite cleady conttadicts the vetsion of the story told by [the plaintiff] . . . so that no reasonable jury could believe it, a coutt should not adopt that version of the facts for purposes of ding on a motion fot summary judgment."' V/itt u. W. Va. Søn Police, Trooþ 2, 633 F.3d 272,276 (4th Clr. 201,1) (citing Scott u. Harri¡, 550 U.S. 372, 378, 380 Q007)); ¡ee al¡o Bostic u. Rodrigaeq, 667 F. S,rpp. 2d 591,,605 (E.D.N .C. 2009) (citation omitted) ("[T]o the extent plaintiffs' recollection and the video ate inconsistent, the video 'speak[s] for itself,' and the court considers the facts as displayed in the video."). Nevertheless, "to the extent that the videos are unclear and ambiguous, the Court must adopt fP]laintiffs version of events for purposes of fDefendants'motion]." Gla¡ne 11-2228,201.3 u. Sowers, No. CIV.A. ELH- WL 5330503, at x5 (D. Md. Sept. 20, 201,3) (unpublished), afd,570 F. App'* 344 (4th C:r..201,4). Moreover, this Court should not "reject a plaintiffs account on summarT judgment whenevet documentary evidence, such as a video, offers [only] Mme svpport for ^ governmental officet's vetsion of events." IYitt, 633 F.3d at 27 6 (emphasis in ongrnal). Excessive Force ,{. teview of the evidence indicates that there is a genuine issue of material fact as to whether Defendants used excessive force duting the incident in question. Excessive force of a pretrial detainee is govetned by the Due Process Clause of the Fourteenth Amendment, which ptohibits before conviction "the use of excessive fotce that amounts to punishment." Sawler u. Atbary,537 Fed. App". 283,290 (4th Cit. objective teasonableness standatd to 201,3) (citation omitted). Courts use ari analyze excessive fotce claims under the Fourteenth ,\mendment. Kingslry u. Hendrickton, 135 S. Ct. 2466, 2473 Q01,5) (concluding that "the 15 appropriate standard objective one"). fot fassessing] a ptetrial detaineç's excessive fotce claim "LJnder this standard, the officer's 'undetþing intent ittelevant; rathet the focus is on 'whether a is solely an ot motivation' is reasonable ofñcer in the same circumstances would have concluded that à threa;t existed justifting the paniculat use of force."' Oliuer u. Bøit1,208 F. Supp.3d 681, ó95 (À,{.D.N.C.2016) (quoting Graham u. Connor,490 U.S. 386,397 (1989); Anderson u. Raxe//, 247 tr3d 125, 129 (4th Cir. 2001)); see al¡o Dd r. Potter,665 F'. App'x 242, 244 (4th Cn.201,6) (unpublished) ("Because the standatd is an objective one, the coutt is not concetned wrth the officets' motivation or intent."). Thus, "a ptettial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or thatit is excessive in relation to that purpose." Kirugtley 135 S. Ct. at 2473-74. The follovrng factots are consideted to detetmine the teasonableness or unreasonableness ofthe force used: the relationship between the need fot the use of force and the amount of force used; the extent of the plaintiffs injury; any effort made by the offìcer to tempet ot to limit the amount of force; the severity of the security problem at issue; the threatteasonably petceived by the officer; and whether the plaintiff was actively tesisting. Id. at 2413. A court must detetmine objective reasonableness "from the perspective of a reasonable officer on the scene, including what the officet knew at the time, not with the 20/20 vision of hindsight)' Id. ^t2473. Hete, the evidence is unclear as to whether Defendants' use of force was objectively teasonable. The conflicting affìdavits present two different vetsions of the events that took place, and the video evidence fails to provide futher clarity. The Cout will 16 address Defendant I(empfs conduct fhst. ¡\s to the Ftst Kingslg factor (the relationship between the need for the use of force and the âmount of force used), this factor weighs in favor of Plaintiff. Plaintiffs version of events suggests that Defendant I(empf was the initial aggressor, while Defendants' affìdavits suggests otherwise. The video evidence does show Plaintiff as he strikes Defendant I(empf. However, accotding to Plaintiff, he did so in self-defense. The events ttanspiring in the adjacenthallway/room prior to Plaintiff enteting the main hallway are absent ftom the video c^meta. Viewed in light most favotable to Plaintiff, the use of fotce Plaintiff describes - - shoving, grabbing throat, punching, and squeezing Plaintiffs ptivate patts would be wholly out of proportion with the need for force to address a detainee who was only asking questions about why he was being sent to the segtegation unit. Saw1ter,537 F. App'" at 292 (citation omitted) ("No law enforcement officer is entitled to use force against someone based on that person's verbal statements alone."). Indeed, if video evidence blatantly conttadicted these allegations, the outcome of this mattet would be different. However, at the junction, the Court only has befote it conflicting vetsions of the events that took place, and a video that captutes only a portion of the scene. Thus, this factor weighs in favor of Plaintiff. The second Kingsle1 factor, the extent of Plainuffs injury, weighs slightly in favor of Defendant I(empf. Plaintiff alleges that he suffered a setious amount of hur loss, other physical inlury and emotional distress as a result of Defendant l(empf s actions. Also, Inmate Smotherson's affidavit in support of Plaintiffs atgument futther notes observation of marks on Plaintiffs face and missing hair. The video is not clear enough to depict PlaintifPs injuries; 1,7 however, it appeats Plaintiff did walk away from the scene (escorted by pdson officials). Moreover, Plaintiff was seen by Nurse Yon immediately following the altercation and othet than a small abtasion to Plaintiffs lip and a bruise on his fotehead, no other physical injuties wete observed. Neither PlaintifPs abrasion or bruise tequired additional care or treatment. The relatively minot injuties could be indicative of the actual fotce used by Defendant I(empf. V/i/,ëin¡ u. CaddjL 559 U.S. 34, 37 Q010) (discussing excessive force undet the Eight Amendment and finding that "[t]he extent of injury may also provide some indication of the amount of fotce applied"). Thus, this factor weighs in favot of Defendant I(empf. Creene u. CE. of Darhan Offiæ of the Sherif Dtp't, No. 1:14-CV-153, 2016WL 4507355, at *10 (À{.D.N.C. Aug.26,201,6) (unpublished) so this factot weighs ("f!he record reflects that these injuries were telatively minor, in favor of the defendants )'); Haiqlþ 41,84426, at *1.2 (I\4.D.N.C. u. Alston, No. 1:14CV770,201,6WL Arg. 5, 201.6) (unpublished) (weighing second Kingslel factor in favor of defendants where "the ,{mended Complaint d[id] not allege that the abtasions tequired medical tteatment"); *4 see also Carcia u. Cardner, No. CV 14-5357,2015 \)fL 6123067, at flW.D. Ark. Aug. 21,201,5) (unpublished) ("The minimal injuries suffeted by þlaintiffl, reddened ^te orr his fotehead and a small abrasion on his left nosttil, even assume[s] these minot injuries were caused by the conduct of the deputies of any excessive fotce."), 61,2591,8 CX/.D. Ark. Oct. \X/hen viewed report and recoøtmercdation adoþted, if a [the court] ..., belies the use No. 5:14-CV-05357, 2015 \XT, 1,6,201,5) (unpublished). in the light most favotable to Plaintiff, the temaining Kingslry factors, "any effort made by the officer to temper or to limit the amount of force; the severity of the 18 security problem at issue; the threat reasonably perceived by the officet; and whether the plaintiff was actively resisting," 135 S. Ct. at2473, all weigh in favor of Plaintiff. Plaintiff here depicts Defendant I(empf as the initial aggressor; thus, any security problem perceived by Defendant I(empf would have been minimal or threat ot nonexistent. Additionally, if PlaintifPs version of the events is ftue, it is bare evidence of initial active tesistance as Plaintiff was simply inquiring about his segtegation unit placement at the time he was allegedly first struck by Defendant l(empf. Here again, absent from the video footage is what transpired in the adjacenthall:vay /room which is material in this mâtter. In sum, the maiority of the Kingsþt factors webh in Plaintiffs favor. Thus, Defendant I{empf should not be entitled to summary judgment. Summary judgment should also be denied as to Defendant Hopkins. Defendant Hopkins admits to using the Taser on Plaintiff, but denies futhet use of the Taser after Plaintiff was handcuffed. To the contrâry, Plaintiff asserts that Defendant Hopkins continuously applied the Taser while Plaintiff was being handcuffed and after Plaintiff was placed in handcuffs. The video footage does depict what appeârs to be a Taset (r'ideo timestamp 01,:22-39), howevet the quality of the video and lack of sound precludes a clear determination âs to what extent it was used, and when it was used þefote andf or. aftet Plaintiff is handcuffed).s Thus, "[i]t is difficult to decipher ftom teviewing the video the ffue sequence of events." IYitt, 633 F.3d at 277; see also Nuer¡ u. Bumette, No. CIV.A. 4:1,3-01.91.4, 5 It is clear from the video that Plaintiff was not tasered after officet escorted him ftom flr.e atea. L9 assisted him 201.5 to his feet WL and 535623, ^t x7 (D S C. Feb. 10, 201,5) (unpublished) ("Although the sequence of events captuted in the video and audio can certatnly be atgued to support the defendants' position, they do not disprove the plaintifPs claims ot foteclose the possibility that a teasonable jury could believe the plaintifPs accounl"). Consideting tbe Kingslg factots, there is a genuine issue of matedal fact as to whether Defendant Hopkins' actions were objectively reasonable. The Court notes that Defendant Hopkins deployed the Taser in drive stun mode, not incapacitating mode. See De Boise u. Tarcr Inî'|, 1nc.,760 F'.3d 892, 896 n.5 (8th Clr. 201,4) ("Deploying the fllaser in drive stun mode means thatan officet removes the cartridge from the fT]aser and applies the ff]aser so as to make direct contact wrth the subject's body. When the fl]aser is in drive stun mode, causes it only discomfort and does not incapacítate the subject."). Moreover, there appears to be no evidence of physical injury to Plaintiffs legs where Defendant Hopkins applied the Taser. Howevet consideting the totality of the circumstances, the fìrst, thitd, fourth, fifth and sixth Kinglsel factots would weigh in Plaintifls favor if his version of the events is true, given his afftmation of when and how long the Taser was deployed. As noted by the Tenth Circuit Cout of -Appeals , many "ff]ederal courts have held that the use of a fiaser ot similat stun gun is not per se unconstitutional when used to compel obediencebyinmates;' Hanteru.Yoang23SF.App'" 336,339 (10th C:l..2007) (unpublished) (collecting cases). "[!]asers are propottional force onþ when deployed in tesponse to a situation in which a teasonable officet would perceive some immediate danget that could be mitigated by using the taset." Estate of Arrnstrong ex re/. Arrnsîrong u. Vill. of Pinehurst,810 F.3d 20 892,903 (4th Cir.) (emphasis in original), cert. denied sab rcom. Annúrong 137 S. Ct. 61.,1,96 L. Fd. 2d 32 Q01.6); Ctr. 2013) (citation omitted) ("-.A' see Vi//. also Sawlter, of Pineharst, N.C. u. E:tute of 537 F. App'* 283,292 (4th law enforcement officer is jusufìed in the use of any force which he reasonably believes to be necessary to effect ârrest or hold someone in custody and of any fotce which he reasonably believes to be necessalT to defend himself ot another ftom bodily harm."). Given the facts hete and viewed in light most favorable to Plaintiff, the Cout cannot conclude that Defendant's Hopkins' use of force was objectively teasonable under the circumstances, patticularly it Defendant Hopkins continued to deploy had been handcuffed and under the conttol of the officets. the Taset after Plaintiff \X4rile it may be true that Defendant Hopkins' initial use of the Taser to restore order was objectively reasonable, the continued use is still a genuine issue of materialfact here because "force justified at the beginning of an encounter is not justified even seconds later fotce has been eliminated." IWaterman u. Batton, 393 F if the justification for the initial .3d 47 1., 481. (4th Cir. 2005); see al¡o Meyrs u.BabimoreCt1.,Md.,71,3F.3d723,734 (4thCir.201,3) (denyingsummary judgmentunderthe Fourth ,{mendment excessive force standard by finding that it is "an excessive and unreasonable use of fotce fot a pol-ice officer repeatedly to administet electrical shocks with a ff]aser on an individual who no longet is atmed, has been brought to the ground, has been testtained physically by several other officers, and no longer is actively tesisting arrest"). under the contol of officers, continued active tesistance or ^ny If use of the Taset would not have been the result of threat posed to the officers. Additionally, at that point, the severity of the secudty ptoblem would be minimal. In sum, Defendant Hopkins should not be gtanted 21 summaÐ/ judgment as to Plaintiffs excessive force claim. Oualified Immunity Defendants asseÍt that they are entitled to qualified immunity. (Defs.'Br. at17-1,8.) Under the doctine of qualified immunity, "govetnment officials perfotming disctetionary functions genetally ate shielded ftom liability for civil damages insofat as their conduct does not violate cleady established statutoq/ or constitutional rþhts of which a reasonable petson would have known." Harlow Couernor¡ Marshall Uniu., u. Fitryerald,457 U.S. 800, 818 (1"982); see also Ndpath u. Bd. of 447 F3d 292, 306 (4th Cit. 2006) ("Qualified immunity shields government officials performing discretionary functions from personal-capacity liability for civil damages under S 1983[.]'). Thus, the traditional two-step qualified immunity inquiry requires a court to determine: "(1) whether the official violated a constitutional right; and so, (2) whether the right was 'cleatly established' at the time of its UMBC u. Hrabowski, immunity, of a a 41,1. violation." Fed. App'x 541, 546-41 (4th Cir. 201,0). In Rock See Pear¡on u. Ufe- evaluating qualified court initially may determine whether the plaintiff has alleged or shown constitutional right at all. þr íf a violation Callahan,555 U.S. 223 Q009).6 Further, "þ]ecause qualified immunity is designed to shield officers not only from liability but from the burdens of litigation, its establishment at the pleading or summarT judgment stage has been specifically encouraged." Pritchett u. Alþrd,973 F.2d 307 ,31,3 (4th Cir. 1,992). Coutt overuled the mandatory two-step sequence adopted 'n Saucier u. Karq, 533 U.S. 1,94 Q001), tn analyztng qualified immunity. Thus, after Pearsoz, courts are free "to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed fust in light of the cjrcumstances . . . ." Pearclll,555 U.S. at 236. 6 In Pear¡on, the Supreme 22 Here, "[t]he fact that pteftial detainees have a Fourteenth Amendment Due Ptocess dght to be free from excessive force, which is balanced against the legitimate interests that stem from the govetnment's need established." to man ge the detention facility, Greene u. CtJ. of Darhøm has long been cleady Offio of the Sherif Dtþ't, No. 1:14-CV-153, 201,6 WL 4507355, at*1.1, (À4.D.N.C. Aug. 26,201.6) (unpubJished) (citìng Bell u. IØolfish,441U.5. 520, 538-40 (1979)). Thus, since Plaintiff "has alleged a clearly established right, summary judgment on qualified immunity grounds is impropet as long as thete temains any material factual dispute regatding the actual conduct u. Harci¡65 F.3d 347 of fDefendants I(empf and Hopkins]." ,359-60 (4th Cir. 1995). Such is the case here. "Although ^ Bøonocore jùry ultimately may find that the fDefendants'] vetsion of the events is more credible, [the Court is] not petmitted to make such credibility determinations when considering whether a þdson offìcial] ptopetly [is] held immune ftom suit under the docuine of qualified immunity." Me1erc,713 F.3d at 733. In sum, at this juncture, Defendants should not be entitled to summary judgment on qualified immunity grounds. Greene, 201,6 WL 4507355, at *1.1. ("\X/hile the Cout appteciates that the defendants deny þlaintiff's] vetsion of events and that þlaintiffs] version has some sedous credibility ptoblems, those disputes are not televant to the qualified issue, which assumes the truth immunity of the plaintiffs vetsion. The defendants are not entitled to qualified immunity. "). IV. CONCLUSION Fot the reasoris stated above, IT IS HEREBY RECOMMENDED Defendants'Motion for SummaryJudgment (Docket Entry 30) be DENIED. 23 that IT IS HEREBY ORDERED that to the extent Plaintiff obtain discovery responses pocket Etrtty 43), the request is U May 26,2017 Dwham, North Catolina 24 seeks additional time to DENIED Joe L. W'ebstet States Magistrate Judge

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