Whiteside v. White et al

Filing 39

ORDER granting Deft Reed's 28 Motion for Summary Judgment, and dismissing this action with prejudice. Signed by Chief Judge Frank D. Whitney on 2/14/2018. (Pro se litigant served by US Mail.) (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-288-FDW
GERALD WHITESIDE,

)
)
Plaintiff,
)
)
vs.
)
)
SUSAN WHITE,
)
WILLIAM REED,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER comes before the Court on a Motion for Summary Judgment by
Defendant William Reed. (Doc. No. 28).
I.

BACKGROUND
A.

Procedural Background

On August 26, 2016, Plaintiff Gerald Whiteside, an inmate in the custody of the North
Carolina Department of Public Safety (“NCDPS”), filed this action, pursuant to 42 U.S.C. §
1983, naming as Defendants movant Defendant Reed and Susan White, both NCDPS employees.
Specifically, Plaintiff alleged that Defendant Reed used excessive force against him on
September 3, 2013, while Plaintiff was incarcerated at Mountain View Correctional Institution in
Spruce Pine, North Carolina. Plaintiff further alleges that, as a result, he suffered pain and
injury to his ankle, and he seeks a declaratory judgment as well as compensatory and punitive
damages. By order dated October 21, 2016, the Court dismissed Susan White as a defendant,
allowed Plaintiff to pursue his action against Defendant Reed, and denied Plaintiff’s Motion to

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Appoint Counsel. (Doc. No. 8).
A summons was issued and served on Defendant Reed. (Doc. Nos. 10, 11). By Order
entered on January 30, 2017, Defendant Reed was allowed up to and including February 27,
2017, to file a responsive pleading to the Complaint. (Doc. No. 14). Defendant Reed timely
filed his Answer on February 24, 2017. (Doc. No. 15). By Order entered on July 17, 2017, the
parties were allowed up to and including August 11, 2017, to file dispositive motions. (Doc. No.
26). On August 10, 2017, Defendant Reed filed the pending summary judgment motion. (Doc.
No. 28). On August 14, 2017, this Court entered an order in accordance with Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the requirements for filing a
response to the motion for summary judgment and of the manner in which evidence could be
submitted to the Court. (Doc. No. 30). Plaintiff responded to the summary judgment motion on
September 1, 2017. (Doc. No. 34). Defendant filed a Reply on September 13, 2017. (Doc. No.
35). Plaintiff filed an additional response on September 25, 2017. (Doc. No. 36). Thus, this
matter is ripe for disposition.
B.

Factual Background

1.

The Alleged Excessive Force Incident and the Summary Judgment Evidence

a.

Plaintiff’s Allegations

In his Complaint and his summary judgment materials, Plaintiff alleges that at around
8:40 p.m. on September 3, 2013, he was involved in a physical altercation (the “incident”) with
another inmate, Marco Culbreath, at Mountain View Correctional Institution. Three correctional
officers sprayed him with pepper spray, which resulted in him being “pinned by the spray to the
railing beneath the stairs.” Inmate Culbreath was pulled away to the right. Plaintiff alleges that
while he was on his knees, Defendant Reed used excessive force by applying a choke hold
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(mandibular angle), pulling Plaintiff to the left and slamming him face first to the ground, using
enough force to break both bones in Plaintiff’s left ankle. Plaintiff alleges that the pain was
severe. Plaintiff requested that he be cuffed in the front to stop the pain and to keep from getting
sick. Plaintiff alleges that this infliction of pain was totally unnecessary and unjust due to the
fact that Plaintiff was already subdued and on his knees. Plaintiff further alleges that, as a result
of this incident, a plate and screws were applied to his ankle and he suffers limited mobility,
swelling, numbness, and pain in his ankle.
b.

Defendant’s Summary Judgment Materials

Defendant’s summary judgment materials show that at around 8:40 p.m. on September 3,
2013, Plaintiff was involved in a fight with Inmate Culbreath on F-Wing. (Doc. No. 1; Doc. No.
29-4 at ¶ 4: Aff. of Defendant Reed; Doc. No. 29-9 at ¶ 3: Aff. of Timothy Blevins). Both
Defendant Reed and Correctional Officer Timothy Blevins responded to the incident. (Doc. No.
29-4 at ¶ 4; Doc. No. 29-9 at ¶ 3). Blevins ordered a lockdown on F-wing—a standard procedure
to have all inmates return to their cells while the correctional staff address a fight or similar type
of disturbance. (Doc. No. 29-9 at ¶ 3). Defendant Reed and CO Blevins ordered the two inmates
to stop fighting and the inmates refused. (Doc. No. 29-4 at 4; Doc. No. 29-9 at ¶ 3). Pepper
spray was used on the inmates, but they continued to fight. (Id.). Both Defendant Reed and
Blevins agree that Plaintiff was on top of Inmate Culbreath. (Id.). According to Plaintiff, Inmate
Culbreath pulled away to the right and he (Plaintiff) was pulled to the left. (Doc. No. 1).
Blevins states that he was attempting to pull Plaintiff off of Inmate Culbreath while Defendant
Reed applied a mandibular angle control technique on Plaintiff in an attempt to gain control of
him. (Doc. No. 29-9 at ¶ 3). The mandibular angle is an authorized restraint taught to
correctional officers to control combative inmates. (Doc. No. 29-4 at ¶ 4). The inmates finally
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complied with the correctional officers’ orders. (Doc. No. 29-4 at ¶ 4; Doc. No. 29-9 at ¶ 3).
Plaintiff stated he thought his leg was broken. (Id.). He was handcuffed in front and medical
assistance was called. (Id.). Plaintiff was then placed in a wheelchair and taken to the prison
medical unit for evaluation. (Id.). Medical records show that Plaintiff suffered a left ankle
fracture, which required surgery to repair. (Doc. No. 34-1 at 11).
Captain Audie Peterson was appointed to investigate the incident. (Doc. No. 29-6 at ¶ 3:
Aff. of Audie Peterson). Per NCDPS policy, investigations are required any time there is an
injury to an inmate or force is used to restrain an inmate. (Id.). Captain Peterson interviewed the
witnesses to the incident, including Plaintiff, Inmate Culbreath, CO Blevins and Defendant Reed,
and written statements were obtained from each. (Doc. No. 29-6 at ¶ 4). He also reviewed a
video tape of the incident, but determined that the video does not clearly show the fight or the
actions the correctional officers took to break up the fight.1 (Id. at ¶ 6 & Attachment B). In the
written statement Captain Peterson received from Plaintiff on September 4, 2013, Plaintiff stated,
“We argued and we fought. Leg was broke went to hospital. Disagreement went too far.” (Doc.
No. 29-6 at ¶ 6 & Attachment A, p. 21). Captain Peterson completed his investigation on
September 23, 2013, concluding that the correctional officers acted quickly and used the proper
amount of force to obtain the correctional objective. (Doc. No. 29-6 at ¶ 4). Captain Peterson’s
written report was reviewed by the superintendent of Mountain View on October 4, 3013, and
approved by the NCDPS Regional Director on December 18, 2013. (Id.).

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The Court has reviewed the videotape and agrees that the video does not clearly show the fight
or the actions the correctional officers took to break up the fight. The videotape does show
correctional officers responding to the scene of the fight, the wing being cleared of inmates,
Inmate Culbreath being escorted from the scene, and Plaintiff being escorted from the scene in a
wheelchair.
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Defendant Reed states that he does not know how Plaintiff injured his leg, that he did not
strike or slam Plaintiff, and that he did not otherwise use excessive force to control Plaintiff.
(Doc. No. 29-4 at ¶ 5). Blevins states that Defendant Reed used only that amount of force
reasonably necessary to break up the fight and secure the combative inmates. (Doc. No. 29-9 at
¶ 4). Captain Peterson testifies that no one he interviewed in his investigation indicated that
Defendant Reed used excessive force in the incident. (Doc. No. 29-6 at ¶ 8).
II.

STANDARD OF REVIEW

Summary judgment shall be granted “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.” FED. R. CIV. P.
56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When determining whether a genuine issue has been raised, the court must construe all
inferences and ambiguities against the movant and in favor of the non-moving party. United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment has the initial burden of demonstrating that there is
no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
movant has made this threshold demonstration, the non-moving party, to survive the motion for
summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather,
the non-moving party must demonstrate specific, material facts exist that give rise to a genuine
issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the
non-movant’s position is insufficient to withstand the summary judgment motion. Anderson,
477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to
preclude granting the summary judgment motion. Dash v. Mayweather, 731 F.3d 303, 311 (4th
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Cir. 2013). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. Further, Rule 56
provides, in pertinent part:
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.
FED. R. CIV. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the
non-movant, the non-movant must show the existence of a factual dispute on every essential
element of his claim.
III.

DISCUSSION

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments,” U.S.
CONST. amend. VIII, and protects prisoners from the “unnecessary and wanton infliction of
pain,” Whitley v. Albers, 475 U.S. 312, 319 (1986). To establish an Eighth Amendment claim,
an inmate must satisfy both an objective component–that the harm inflicted was sufficiently
serious–and a subjective component–that the prison official acted with a sufficiently culpable
state of mind. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). In adjudicating an
excessive force claim, the Court must consider such factors as the need for the use of force, the
relationship between that need and the amount of force used, the extent of the injury inflicted,
and, ultimately, whether the force was “applied in a good faith effort to maintain or restore
discipline, or maliciously and sadistically for the very purpose of causing harm.” Albers, 475
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U.S. at 320-21. Furthermore, although the lack of serious injury may be considered a factor in
the excessive force analysis, the fact that the prisoner suffered only minor injuries is not
dispositive in an excessive force claim. See Wilkins v. Gaddy, 559 U.S. 34, 38 (2010).
For the following reasons, Defendant Reed is entitled to summary judgment as to
Plaintiff’s claim against him for excessive force. First, to the extent that Plaintiff has sued
Defendant Reed in his official capacity, the suit is against the NCDPS and the State of North
Carolina. However, neither the State nor it agencies constitute “persons” subject to suit under
Section 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989). Furthermore, the
Eleventh Amendment bars Plaintiff's suit for monetary damages against the State of North
Carolina and its various agencies. See Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir.
2003).
Next, to the extent that Plaintiff has sued Defendant in his individual capacity, the Court
finds that Plaintiff has not raised a genuine dispute of fact as to whether Defendant used
excessive force against Plaintiff. Plaintiff freely acknowledges that he was fighting with another
inmate when Defendant Reed arrived at the scene of the incident. Both Defendant Reed and
Blevins stated that they ordered Plaintiff and the other inmate to stop fight before applying
pepper spray. Plaintiff acknowledges that pepper spray was used before the correctional officers
attempted to separate the inmates. Both Defendant Reed and Blevins state that after they used
pepper spray, they again ordered the inmates to stop fighting and that the inmates refused their
orders. It is uncontroverted that Defendant Reed placed Plaintiff in a mandibular angle control
hold. Defendant Reed, Blevins, and Captain Peterson all confirm that this control hold is taught
to correctional officers as a means to secure combative inmates. Plaintiff alleges that, after being
placed in the mandibular angle, Defendant Reed “slam[med] [Plaintiff] face first to the ground
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using enough force to break both bones in [Plaintiff’s] left ankle.” This statement is contradicted
by Defendant’s evidence as well as by Plaintiff’s own pleadings, as he never alleges that this
slamming to the ground face-first in any way injured his face or head, only his ankle. When
asked by Captain Peterson after this incident to write a statement as to what had occurred,
Plaintiff never mentioned Defendant Reed slamming him to the ground or any other actions by
Defendant Reed that could reasonably be interpreted as excessive force.
The Court notes that, in his response to the summary judgment, Plaintiff makes various
assertions in an attempt to raise a genuine factual dispute. First, Plaintiff states that “the video of
the incident shows no medical staff entering or leaving the cell block at any time.” (Doc. No. 34
at p. 2). Plaintiff’s allegations in his Complaint all concern whether Defendant Reed used
excessive force in restraining him. It is uncontested that Plaintiff was taken from the incident in
a wheelchair to the medical unit, was seen at the medical unit by staff medical personnel, and
subsequently was transported to an emergency room for treatment. Plaintiff’s assertion that the
video does not show medical staff leaving or entering the cell block, even if true, does not raise a
genuine factual dispute on summary judgment as to Plaintiff’s claim against Defendant Reed for
excessive force.
Next, Plaintiff asserts that Defendant Reed has falsely portrayed the incident between
Plaintiff and the other inmate “as a viscious [sic] assault by the Plaintiff.” (Doc. No. 34 at p. 3).
Plaintiff states that the incident between himself and the other inmate was merely “a mutual
physical altercation. A fight rather than a [sic] assault.” (Id.). Again, even if Plaintiff’s version
of the incident is correct, it does not raise a genuine factual dispute as to his claim against Reed
for excessive force. By his own admission, Plaintiff was involved in a fight with another inmate.
Clearly, this violated penal rules and created a security threat, and correctional officers were
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required to react quickly to break up the fight.
Next, Plaintiff makes statements that are wholly unsupported by the record. He first
states that Defendant Reed maintains that “[t]he Plaintiff stood over Inmate Culbreath and
continued to strike him” and that “[r]elying on Defendant Reed’s own narrative, the Plaintiff
went from standing over the other inmate—to a mandibular hold—to handcuffs.” Plaintiff
argues that if he were standing when Defendant Reed applied the mandibular angle restraint
hold, his injury must have occurred after the hold was applied, as Plaintiff would have been
unable to stand on an injured leg. (Doc. No. 34 at 4-5). Plaintiff does not cite the source of these
purported statements by Reed. At no time in his statements concerning this matter, either to the
use of force investigation officer or in his affidavit filed with his summary judgment motion,
does Defendant Reed state that Plaintiff was standing when the hold was applied. Rather, as
Plaintiff states in his Response, Defendant Reed has testified that “Inmate Whiteside was on top
of Inmate Culbreath.” (Doc. No. 34 at p. 4). No one, including Plaintiff in his Complaint or
Response, states that Plaintiff was standing when the mandibular angle restraint hold was
applied.
Plaintiff also maintains that because Defendant Reed was a use-of-force instructor for
NCDPS, he should be held to a higher standard when applying the mandibular angle. (Doc. No.
34 at p. 6). It is true that Defendant Reed has given instruction on how to apply the mandibular
angle restraint hold, that this hold is authorized by NCDPS to restrain combative inmates, and
that there has been no allegation that Defendant Reed applied the hold incorrectly. Plaintiff’s
assertion simply does not raise a genuine issue of disputed fact.
Plaintiff also maintains that he was compliant after Defendant Reed applied the
mandibular angle restraint hold. Again, this is true. Before Defendant Reed applied the hold,
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however, Plaintiff was engaged in a fight with another inmate; Plaintiff refused several orders to
stop fighting; and, even after being sprayed with pepper spray, Plaintiff continued to fight and he
had to be dragged off of the other inmate. It was not until the hold was applied that Plaintiff
finally complied. Finally, as to the additional arguments made in Plaintiff’s second response to
the summary judgment motion, Plaintiff likewise raises no genuine issues of disputed facts
sufficient to overcome the summary judgment motion.2
In sum, based on the facts as set forth in this motion, a reasonable jury could not find in
favor of Plaintiff and Defendant Reed is entitled to summary judgment. Thus, Defendant Reed is
entitled to summary judgment as to Plaintiff’s excessive force claim against him.3
IV.

CONCLUSION

IT IS, THEREFORE, ORDERED that:
1.

Defendant Reed’s Motion for Summary Judgment, (Doc. No. 28), is GRANTED.

2. This action is dismissed with prejudice.
3. The Clerk is directed to terminate this action.
Signed: February 14, 2018

2

The Court notes that Plaintiff has not submitted a sworn affidavit or other admissible evidence
in opposing the summary judgment motion; his two responses merely present the various
arguments that Court has discussed here.
3
Defendant also raised qualified immunity as a defense to Plaintiff’s excessive force claim.
Because the Court has determined that there was no constitutional violation in the first instance,
the Court does not need to determine whether Defendant is entitled to qualified immunity.
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