MATHIS v. MILEM et al

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)

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.

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'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