Sanders v. Davis et al
ORDER granting 25 Motion for Summary Judgment; granting 34 Motion for Summary Judgment; denying as moot 40 Motion for Protective Order; dismissing Complaint with and without prejudice. Signed by Chief Judge Robert J. Conrad, Jr on 3/27/12. (Pro se litigant served by US Mail.)(nll)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DANDY DEWIGHT SANDERS,
FNU DAVIS, et al.,
THIS MATTER comes before the Court on Defendants’ Motions for Summary
Judgment (Doc. Nos. 25; 34).1 Also before the Court is Defendant Earley’s Amended Motion
for Protective Order. (Doc. No. 40).
On December 10, 2009, Plaintiff filed this action under 42 U.S.C. § 1983, naming the
following persons as Defendants: Sergeant Mark Davis (“Davis”), Captain Phyllis Sims
(“Sims”), Chief Deputy Danny Gordon (“Gordon”), and Sheriff Raymond Hamrick
(“Hamrick”), all from the Cleveland County Sheriff’s Office, and Christal Earley (“Early”), a
nurse at the Cleveland County Jail and an employee of Southern Health Partners2 (collectively,
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was
advised of the necessity of filing responses to both motions and of the manner in which evidence
could be submitted to the Court. (Doc. No. 38). On June 17, 2010 and March 9, 2011, Plaintiff
filed his Responses. (Doc. Nos. 27; 42).
Plaintiff sued Defendants in their individual and official capacities. Plaintiff’s official
capacity claims against Sergeant Mark Davis, Captain Phyllis Sims, and Chief Deputy Danny
Gordon are claims against Sheriff Hamrick. See Thomas v. Holly, No. 5:10-cv-52-BO, 2010
WL 3063205, at *2 (E.D.N.C. Aug. 4, 2010) (noting that, because in North Carolina the office of
sheriff is a distinct legal entity, and deputy sheriffs are employees of the sheriff, official capacity
“Defendants”). (Doc. No. 1 at 3). Plaintiff alleges that while he was a pre-trial detainee at the
Cleveland County Jail Annex (“Jail Annex” or “jail”), Defendants failed to protect him from an
assault committed on February 15, 2009 by Plaintiff’s cell mate Anthony Hopper (“Hopper”).
Plaintiff also alleges that he had pre-existing back injuries and that Defendants deliberately
failed to protect his health and safety by allowing Plaintiff’s bed mattress to be taken away
during the daytime for 26 days due to the fight between Plaintiff and Hopper.
In their pending motion for summary judgment, (Doc. No. 25), Defendants Davis, Sims,
Gordon, and Hamrick contend that Plaintiff did not exhaust his administrative remedies with
regard to his failure to protect claim related to Plaintiff’s fight with his cell mate Hopper.
Defendants Davis, Sims, Gordon, and Hamrick further contend that they are entitled to summary
judgment on the merits of Plaintiff’s claim related to the confiscation of his mattress. In her own
motion for summary judgment, (Doc. No. 34), Defendant Earley adopts the other Defendants’
contentions regarding exhaustion of administrative remedies, and further contends that she is
entitled to summary judgment on the merits of Plaintiff’s claim related to the confiscation of his
The following facts are undisputed, unless otherwise noted by the Court: In February
2009, Plaintiff was incarcerated as a pre-trial detainee at the Cleveland County Jail Annex.
Anthony Hopper was Plaintiff’s cell mate. According to Plaintiff, on February 9, 2009, he
complained to Defendant Davis in writing that Hopper was taking Plaintiff’s meals and
claims against deputy sheriffs are, in fact, claims against the sheriff). Furthermore, the parties
appear to assume, and it also appears to the Court, that Defendant Earley was acting under color
of state law in her capacity as a nurse treating inmates at the Cleveland County Jail.
threatening to beat Plaintiff up if he told anyone, and Plaintiff asked to be moved to another cell
because he feared for his safety. (Doc. No. 41: Decl. of Sanders at ¶ 2). According to Plaintiff,
Davis took no action on these requests. Davis denies that Plaintiff ever informed him that
Plaintiff feared for his safety due to Hopper’s threats to beat him up. (Doc. No. 25-2: Davis
Decl. at ¶ 8).
On February 15, 2009, Hopper and Plaintiff fought with each other and both men were
taken to the local hospital to have Mace washed off of their bodies. Plaintiff contends that
Hopper attacked Plaintiff, whereas Defendants characterize the altercation between Plaintiff and
Hopper as being the fault of both men. (Doc. Nos. 41: Decl. of Sanders at ¶ 3; 25-2: Davis Decl.
at ¶ 9). An emergency room note states that Plaintiff was treated for Mace exposure and that he
had “a small laceration just below the hairline.” (Doc. No. 27 at 12).
According to Plaintiff, he informed the hospital doctor that the jail had a policy of taking
mattresses away from prisoners as punishment for fighting in the jail, and Plaintiff told the
doctor about his “pre-existing lumbar disc injur[ies].” (Doc. No. 41: Decl. of Sanders at ¶ 4).
Plaintiff alleges that the hospital doctor “stated he would put it in the medical records that due to
plaintiff’s back injury, his mattress should not be taken away.” (Doc. No. 1 at 6, ¶ 8). Plaintiff
also contends that the doctor instructed Officer Steven Norris that Plaintiff’s mattress should not
be taken away. (Doc. No. 41: Decl. of Sanders at ¶ 4). Plaintiff states that as he and Officer
Norris were leaving the hospital, Norris stated that it did not matter what the doctor had stated
about Plaintiff’s mattress, as it would be up to the jail’s medical staff as to whether Plaintiff’s
mattress would be taken away. (Doc. No. 42: Decl. of Sanders at ¶ 4). An emergency room note
from Plaintiff’s February 15, 2009 hospital visit indicates that Plaintiff complained to the
emergency room doctor of a past medical history of lumbar disc problems. (Doc. No. 36-2).
The note does not indicate, however, a present complaint of back pain. (Id.).
When Plaintiff returned to the Jail Annex, jail officials placed him in security lockdown
for thirty days for violating jail policy against fighting. (Doc. No. 25-2: Davis Decl. at ¶ 10). As
part of the lockdown, jail officials removed Plaintiff’s mattress each day from 6:45 a.m. to 6:45
p.m. (Id.). Plaintiff contends that because he was not allowed to use his mattress 12 hours out of
each day when he was on lockdown, he suffered migraines, blurred vision, memory loss, and
chronic back pain. (Doc. No. 1 at 5, ¶ 11).
Defendant Earley evaluated Plaintiff at the jail on February 17, 2009, two days after
Plaintiff’s fight with Hopper. Plaintiff reported to Earley that he had an old L1/L2 injury and he
asked for a doctor’s order prohibiting jail officials from taking away Plaintiff’s mattress as
punishment. (Doc. No. 36-1). Earley explained to Plaintiff that she had no control over jail
disciplinary rules. (Doc. No. 36: Aff. of Earley at ¶ 9). According to Earley, Plaintiff became
hostile and aggressive, requiring Earley to ask the guards to take Plaintiff back to his cell. (Id.).
Earley attests that, before Plaintiff filed this lawsuit, she had no knowledge of Plaintiff’s
February 15, 2009 emergency room visit, and she had not seen any medical records from that
visit. (Id. at ¶ 4). Earley further states that she saw no medical evidence that would have
required Plaintiff to have 24-hour access to a mattress because of his back problems. (Id. at ¶ 8).
In response, Plaintiff has attached a grievance dated January 29, 2009, and signed by
Defendant Earley, to show that Earley knew about his back problems when she evaluated him.
In the grievance, Plaintiff complained of not receiving medical screening since his arrival at the
jail. He also stated in the grievance that the discs in his lower back were bulging with nerve
damage and that his back pain had been exacerbated when his mattress was taken away from him
during a previous stay in the jail. (Doc. No. 42 at 5). Plaintiff further stated in the January 29,
2009 grievance that the lack of a mattress during that time “irritated my back injury and the pain
has been well over 10" since that time. (Id. at 6).
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure provides:
A party may move for summary judgment, identifying each claim or defense—or
the part of each claim or defense—on which summary judgment is sought. The
court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law. The court should state on the record the reasons for granting or denying
FED . R. CIV . P. 56(a). The rule goes on to provide procedures for responding to a motion for
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may
object that the material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.
FED . R. CIV . P. 56(c).
On a motion for summary judgment, the moving party has the burden of production to
show that there are no genuine issues of fact for trial. Once the moving party has met that
burden, the non-moving party has the burden of persuasion to establish that there is a genuine
issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must
do more than simply show that there is some metaphysical doubt as to the
material facts. Rather, the nonmoving party must come forward with “specific
facts showing that there is a genuine issue for trial.” Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there
is no “genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations
omitted) (quoting FED . R. CIV . P. 56).
Failure to Protect Plaintiff from Cell Mate
Defendants first contend that the jail’s grievance records do not reflect that Plaintiff
submitted any grievances regarding Defendants’ alleged failure to move him to another cell
away from Anthony Hopper because Plaintiff feared for his safety. In his Declaration,
Defendant Davis states that he has received two requests from Plaintiff to move to another cell,
but that neither request stated that Plaintiff feared for his safety. (Doc. No. 25-2: Davis Decl. at
¶¶ 6-7). The first request, on February 6, 2009, stated that Plaintiff wanted to move to a different
cell because of Hopper’s “major gas problem 24/7 non-stop.” (Doc. No. 25-5: Ex. C to Davis
Decl.). In the second request, dated February 12, 2009, Plaintiff asked to be moved from his cell
because he “cannot take the nastyier [sic] than nasty gas from my cell mate.” (Doc. No. 25-6:
Ex. D to Davis Decl.). Defendant Davis deemed these grievances to be frivolous and therefore
did not respond to them. Defendants contend that, other than these two grievances, Plaintiff
never complained to Davis, in a grievance or otherwise, that he feared for his safety with Hopper
as his cell mate. (Doc. No. 25-2: Davis Decl. at ¶ 8). Defendants contend that Plaintiff has
therefore failed to exhaust his administrative remedies under the PLRA with regard to his failure
to protect claim.
The Prison Litigation Reform Act of 1995 (“PLRA”) mandates that “no action shall be
brought with respect to prison conditions under § 1983 of this title, or any other Federal law, by
a prisoner . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). In Porter v. Nussle, the Supreme Court held that the PLRA’s exhaustion requirement
“applies to all inmate suits about prison life . . . .” 534 U.S. 516, 532 (2002). In Woodford v.
Ngo, the Supreme Court stated that “[p]risoners must exhaust all ‘available’ remedies, not just
those that meet federal standards.” 548 U.S. 81, 85 (2006). The Court further explained that
proper exhaustion of administrative remedies “means using all steps that the agency holds out,
and doing so properly (so that the agency addresses the issues on the merits).” Id. at 90. Thus,
exhaustion is mandatory, and unexhausted claims may not be litigated in federal court. Jones v.
Bock, 549 U.S. 199, 211 (2007).
The Cleveland County Sheriff’s Office has a formal written grievance policy. (Doc. Nos.
25-2: Davis Decl. at ¶ 3; 25-3). When inmates are incarcerated at the jail, they receive an inmate
handbook listing the jail’s policies and procedures. (Doc. No. 25-2: Davis Decl. at ¶ 5). If an
inmate has a grievance, the inmate requests a grievance form, fills out the form, and places the
form in a locked box. (Doc. Nos. 25-2: Davis Decl. at ¶ 3; 25-3). The jail sergeant or grievance
officer reviews and investigates the grievance and provides a written response to the inmate
within ten days of receipt of the grievance. (Id.). An inmate may appeal this response if the
inmate is not satisfied with it. (Id.).
In his response to the summary judgment motion filed by Defendants Davis, Gordon,
Hamrick, and Simms, Plaintiff contends that he submitted a grievance before his fight with
Hopper in which he detailed his fear of being harmed by Hopper. (Doc. No. 27 at 17). Plaintiff
attached a grievance form to his response brief as Exhibit H. (Doc. No. 27 at 18). The grievance
is dated February 14, 2009, the day before Plaintiff’s fight with Hopper, and Plaintiff states as
follows in an attachment to the form: “I have written 3 request[s] explaining that I needed to be
moved due to my cell mate’s gas problem and now the disrespect has advanced to him taken [sic]
my food and threat[en]ing to hurt me. I am scared for my safety please move me. I am sending a
copy of this to my mother.” (Id.). The grievance form’s “Administrative Action” section, where
the prison official typically writes a response to the grievance, is blank. (Id.).
In response to Plaintiff’s contention that he submitted the grievance identified as Exhibit H,
Defendant Davis attests in a Declaration that he never received any grievance identified as
Plaintiff’s Exhibit H and that Plaintiff’s Exhibit H was not in Plaintiff’s inmate file. (Doc. No. 313: Decl. of Davis at ¶ 3). Davis states that upon receipt of a grievance, it was his practice to write
down the response on the “Administrative Action” portion of the grievance, and return it to the
inmate. Davis states that it was also his practice to make a copy of the grievance, along with the
“administrative action,” and place it in the inmate’s file. (Id. at ¶ 5). Finally, Davis attests that
Plaintiff never informed him that Plaintiff feared for his safety with Hopper as his cell mate. (Id.
at ¶ 6).
The Court finds that Plaintiff did not submit the grievance form labeled as Exhibit H. See
Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) (“Instances exist - such as those involving
jurisdictional issues - when judges may resolve factual questions. One such instance is when a
judge must decide a motion to dismiss for failure to exhaust nonjudicial remedies.”); Wyatt v.
Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003) (“In deciding a motion to dismiss for a failure to
exhaust nonjudicial remedies, the court may look beyond the pleadings and decide disputed issues
of fact.”). The Court arrives at its conclusion based on the evidence of record. First, all of the
other requests/grievances presented as evidence by Plaintiff in this lawsuit, and all of the
requests/grievances presented by Defendants, contain a stamp or handwritten notation of the date
received in the top right corner. The requests/grievances also indicate how the grievance was
handled in the “Administrative Action” section. For instance, the two requests in which Plaintiff
complained about Hopper’s gas, dated February 6, 2009, and February 12, 2009, contain either a
date stamp or a handwritten date in the top right corner. Furthermore, there is a handwritten
notation in the “Administrative Action” section, stating “No response to this Request” and “No
Response.”3 See (Doc. Nos. 25-5; 25-6). By contrast, Plaintiff’s Exhibit H contains neither a date
stamp nor a handwritten notation in the Administrative Action section. Furthermore, despite the
fact that Plaintiff produced to the Court copies of other grievances he submitted to the jail in
January 2010, he did not produce Exhibit H until June 2010, after Defendants had filed their
summary judgment motion asserting their arguments regarding Plaintiff’s failure to exhaust
administrative remedies. See (Doc. Nos. 15; 27). The Court finds that Plaintiff failed to present
sufficient evidence on summary judgment to show that he exhausted his administrative remedies
with respect to his failure to protect claim.4
As noted, supra, Davis did not respond to these requests because he deemed them to be
Plaintiff has not shown that Defendants knew or should have known that Plaintiff was
subject to a risk of harm or that Plaintiff suffered an objectively serious risk of harm. As
discussed, Defendants contend that Plaintiff did not complain to them that he feared for his
Deliberate Indifference to Plaintiff’s Health or Safety
In Farmer v. Brennan, the Supreme Court held that the Eighth Amendment to the
Constitution “imposes duties on [prison] officials, who must provide humane conditions of
confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and
medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.’”5 511
U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1992)). This is a low
standard, as the Supreme Court emphasized that “[p]rison conditions may be restrictive and even
harsh.” Id. at 833 (internal quotations omitted). To sustain an Eighth Amendment claim, a
prisoner must show (1) that objectively the deprivation was sufficiently serious—that is, the
deprivation must be a “denial of the minimal civilized measure of life’s necessities” and (2) that
the defendant was deliberately indifferent to the prisoner’s health or safety. Id. at 834 (internal
quotations omitted). Thus, “[d]eliberate indifference requires a showing that the defendants
actually knew of and disregarded a substantial risk of serious injury to the detainee or that they
actually knew of and ignored a detainee’s serious need for medical care.” Young v. City of Mt.
safety before the fight with Hopper. Defendants further note that Plaintiff had only a small
scratch on his head after the fight. (Doc. No. 25-8: Norris Decl. at ¶ 3). Plaintiff was taken to
the hospital, not because he suffered any injury during the fight, but because his eyes needed to
be decontaminated from the pepper spray administered to break up the fight. (Id. at ¶ 4). Other
than treatment for the pepper spray, Plaintiff received no medical treatment at the hospital. (Id.
at ¶¶ 5-6). Defendants contend that, as a result, Plaintiff has failed to show he suffered an
objectively serious risk of harm. Because Plaintiff has failed to exhaust his administrative
remedies with respect to his failure to protect claim, this Court does not address the merits of this
Due to his pre-trial detainee status, Plaintiff’s constitutional claims are analyzed under
the Due Process Clause of the Fourteenth Amendment, rather than the Eighth Amendment.
However, as a practical matter, courts do not distinguish between the Eighth and Fourteenth
Amendments in the context of a pre-trial detainee’s Section 1983 claim. See Hill v. Nicodemus,
979 F.2d 987, 990-92 (4th Cir. 1992).
Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001).
Defendants Davis, Gordon, Hamrick, and Simms contend that they are entitled to summary
judgment as to Plaintiff’s claim alleging deliberate indifference to his health or safety arising out
of the confiscation of his mattress. For the following reasons, the Court agrees.
First, in their brief in support of the motion for summary judgment, Defendants explain that
the Sheriff’s Office has two types of lockdowns at the Jail Annex – administrative and security.
(Doc. No. 25-2: Davis Decl. at ¶ 4). Administrative lockdown is for the purpose of keeping an
inmate away from other inmates to protect the inmate’s safety and well-being, or other inmates’
safety. (Id.). Security lockdown is used to maintain the safety and security of the facility, as well
as the safety and security of all inmates. (Id.). An inmate may be placed on security lockdown
when he or she violates Sheriff’s Office rules. (Id.).
The Jail Annex has three categories of violations that can lead to discipline. (Id. at ¶ 5).
The most serious of these violations is a level three violation, which is imposed to maintain safety,
security for the facility, and care of all inmates. (Id.). As a result of his fight with Hopper,
Plaintiff was placed on a level three violation and lost his mattress from 6:45 a.m. to 6:45 p.m.
(Id. at ¶ 10; Ex. B). Plaintiff had his mattress each day from 6:45 p.m. to 6:45 a.m. (Id. at ¶ 10).
The Court finds that, in confiscating Plaintiff’s mattress during daylight hours, Defendants
were not acting with deliberate indifference to Plaintiff’s health or safety. “[P]reserving internal
order and discipline are essential goals that may require limitation or retraction of the retained
constitutional rights of both convicted prisoners and pretrial detainees.” Bell v. Wolfish, 441 U.S.
520, 546 (1979). Plaintiff was placed on mattress restrictions in order to maintain the safety and
security of the Jail Annex. Restrictions such as these are constitutionally permissible. See
Gannaway v. Berks Cnty. Prison, No. 09-4501, 2011 WL 1196905, at *6 (E.D. Pa. Mar. 31, 2011)
(no constitutional violation where the plaintiff’s mattress was confiscated 16 hours out of the day
where plaintiff contended that he suffered from back problems). Furthermore, there is no evidence
that a doctor ordered that Plaintiff required a mattress 24 hours a day after he returned from the
hospital. (Doc. No. 25-8: Norris Decl. at ¶ 6). Additionally, Plaintiff has not produced any
medical evidence to show that his back problems were exacerbated by the confiscation of his
The Court further notes that, as to Defendants Gordon, Sims, and Hamrick, Plaintiff has
produced no evidence to show that these Defendants acted personally to deprive Plaintiff of his
constitutional rights. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (stating that to establish
individual liability under Section 1983, a plaintiff must affirmatively show that the “official
charged acted personally in the deprivation of the plaintiff’s rights”). Here, Gordon, Sims, and
Hamrick played no role in making the decision to take away Plaintiff’s mattress during the day. In
fact, the only allegation against Gordon and Sims is that they met with Plaintiff’s mother after
Plaintiff was on lockdown and denied Plaintiff’s mother’s request that the mattress be returned to
Plaintiff. (Doc. No. 1 at 5, 10). There are no allegations of any kind against Hamrick in the
Complaint. Thus, even if the Court were to find that depriving Plaintiff of a mattress during
daylight hours somehow violated Plaintiff’s constitutional rights, summary judgment would still
be proper as to Gordon, Sims, and Hamrick.
There is also no basis for the imposition of supervisory liability against Gordon, Sims, or
Hamrick. To demonstrate supervisor liability under Section 1983, Plaintiff would have to show
that Gordon, Sims, or Hamrick had actual or constructive knowledge that their subordinates, such
as Davis, were engaged in conduct that posed a pervasive and unreasonable risk of constitutional
injury to Plaintiff, that their response was inadequate, and that there was a causal link between
their inaction and Plaintiff’s injury. See Shaw v. Stroud, 13 F.3d 791, 799-800 (4th Cir. 1994).
Plaintiff has presented no such evidence; thus, Gordon, Sims, and Hamrick could not be held liable
in this case under a theory of supervisor liability. For the reasons stated, Gordon, Sims, and
Hamrick are entitled to summary judgment. Plaintiff’s failure to protect claim related to the
removal of his mattress is DISMISSED with prejudice.
Defendant Earley’s Deliberate Indifference to Plaintiff’s Health or Safety
Defendant Earley contends that she is entitled to summary judgment as to Plaintiff’s claim
against her for deliberate indifference to Plaintiff’s health or safety. The Court agrees. Here, there
was a single interaction between Plaintiff and Defendant Earley – a medical evaluation on
February 17, 2009, two days after the fight between Plaintiff and Hopper. Plaintiff contends that
Defendant Earley violated his constitutional rights by failing to ensure that Plaintiff had access to a
mattress in his cell during the daytime because of his back problems. The decision to take away
Plaintiff’s mattress, however, was the prison administrators’, not Earley’s, and Earley attested that
she did not believe she had the authority to override disciplinary measures instituted by prison
administrators. (Doc. No. 36: Aff. of Earley at ¶ 7). Here, because Earley was not involved in the
decision to remove Plaintiff’s mattress, she cannot have been deliberately indifferent to Plaintiff’s
health or safety.
Plaintiff takes issue with Earley’s contention that when she evaluated Plaintiff, she saw no
evidence establishing any medical need for Plaintiff to have access to a mattress during the
daytime. As noted, supra, Plaintiff has attached a grievance that he filed with the jail on January
29, 2009, in which Plaintiff complains about back problems and states that his problems were
exacerbated when the jail took his mattress away on a prior date. Plaintiff notes that Earley signed
this grievance. Therefore, Plaintiff contends, Earley did know about Plaintiff’s back problems and
his need to have a mattress 24 hours per day. Even accepting Plaintiff’s contention as true, he has
not raised an issue of a disputed material fact with regard to his deliberate indifference claim
against Earley. That is, regardless of what Earley knew about Plaintiff’s need for a mattress in his
cell, Early is not the one who ordered the mattress removal.
In sum, the undisputed evidence establishes that Earley evaluated Plaintiff in response to
his request on February 17, 2009, and Earley had no input into the decision to remove Plaintiff’s
mattress. Therefore, the Court finds that Earley was not deliberately indifferent to Plaintiff’s
health or safety, and Earley is entitled to summary judgment.
In sum, for the reasons stated herein, Defendants are entitled to summary judgment.6
IT IS, THEREFORE, ORDERED that:
Defendants’ Motions for Summary Judgment, (Doc. Nos. 25; 34), are GRANTED;
Defendant Earley’s Amended Motion Protective Order, (Doc. No. 40), is DENIED
The Complaint is DISMISSED. Because Plaintiff did not exhaust his
administrative remedies with respect to the failure to protect claim related to the
fight with Hopper, that claim is dismissed without prejudice.7 Plaintiff’s deliberate
Defendants also contend that they are entitled to qualified immunity. Because the Court
has found that Defendants did not violate Plaintiff’s constitutional rights in the first instance, the
Court does not need to address the issue of qualified immunity. See Yacovelli v. Moeser, 324 F.
Supp. 2d 760, 765 (M.D.N.C. 2004) (“Because, as previously discussed, no constitutional
deprivation has been alleged, the Court need not address whether Defendants are entitled to
The dismissal is effectively with prejudice because Plaintiff is no longer housed at the
indifference claim related to confiscation of his mattress is dismissed with
Signed: March 27, 2012
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