Mauney v. Burke County Sheriff's Office et al
MEMORANDUM OF DECISION AND ORDER granting Defts' 29 Motion for Summary Judgment, dismissing without prejudice Pltf's excessive force claim against Deft Bollinger under the Eighth Amendment and dismissing with p rejudice Pltf's remaining claims. Clerk is instructed to correct the docket in this matter to reflect Deft FNU Bollinger's true full name, Jamison Bollinger, and Deft FNU Marshall's true full name, David Marshall; and Clerk is instructed to terminate this action. Signed by Chief Judge Martin Reidinger on 2/16/2021. (Pro se litigant served by US Mail.)(ejb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:19-cv-00032-MR
BRADLEY L. MAUNEY,
BURKE-CATAWBA DISTRICT )
DECISION AND ORDER
THIS MATTER comes before the Court on Defendants’ Motion for
Summary Judgment. [Doc. 29].
On January 30, 2019, the Plaintiff Bradley L. Mauney, proceeding pro
se, filed this action pursuant to 42 U.S.C. § 1983; the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101, et seq.; and Section 504 of the
Rehabilitation Act (“Rehab Act”). [Doc. 1]. Plaintiff alleges that his rights
under the First, Eighth, and Fourteenth Amendments to the U.S. Constitution
and under the ADA and Rehab Act were violated while Plaintiff was being
held at Defendant Burke-Catawba District Confinement Facility (“BCDCF”)
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 1 of 24
on August 28, 2018.1 [Id. at 3-4]. Plaintiff’s Complaint survived initial review
as to Defendants BCDCF, on Plaintiff’s ADA and Rehab Act claims only;
FNU Bollinger, identified as Corporal Detention Officer at BCDCF; and FNU
Marshall, identified as a Sergeant Detention Officer at BCDCF. [Doc. 1 at
Plaintiff sues Bollinger and Marshall in their individual and official
Plaintiff alleges that he is deaf and had been transported from the
Guilford County Detention Center to BCDCF for a court appearance. Plaintiff
claims that, while at BCDCF and confined in a holding cell, he was denied
access to the TTY telephone.2 [Doc. 1 at 6]. Plaintiff further alleges that,
after being denied access to the TTY telephone, Defendants Bollinger and
Marshall used excessive force on Plaintiff. [Id. at 6-7].
For his injuries, the Plaintiff alleges that he suffered swelling, bruises,
and pain in his left leg. [Id. at 8]. For relief, the Plaintiff seeks compensatory
Plaintiff filed his Complaint under penalty of perjury. [See Doc. 1-1].
TTY stands for Text Telephone, which is a special device that allows people who are
deaf, hard of hearing, or speech-impaired to type messages back and forth. BCDCF had
a TTY telephone located in a slide-out desk right under the standard telephone for use
by deaf inmates like Plaintiff. [Doc. 30-3 at 8, 26: Plaintiff’s Dep.]. Plaintiff had used the
TTY telephone at BCDCF on a previous occasion in November 2016 after he had been
arrested. [Id. at 2].
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 2 of 24
and punitive damages and injunctive relief requiring Defendants to provide
TTY telephones to all deaf inmates.3 [Id. at 5].
On August 10, 2020, Defendants filed a Motion for Summary
Judgment. [Doc. 29]. All defendants argue that they are entitled to summary
judgment because Plaintiff failed to exhaust available administrative
remedies before bringing this suit and because Plaintiff’s claims fail on the
merits. Defendants Bollinger and Marshall also argue that they are entitled
to qualified immunity on Plaintiff’s individual capacity claims. [Doc. 30 at 2,
Thereafter, the 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 summary judgment motion and of the manner in
which evidence could be submitted to the Court. [Doc. 31]. The Plaintiff was
specifically advised that he “may not rely upon mere allegations or denials of
allegations in his pleadings to defeat a summary judgment motion.” [Id. at
2]. Rather, he must support his assertion that a fact is genuinely disputed
by “citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
Plaintiff has been released from custody since filing his Complaint. [See Doc. 27]. As
such, Plaintiff’s claim for injunctive relief will be dismissed as moot. See Incumaa v.
Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007).
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 3 of 24
stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.” [Id. (citing Fed. R.
Civ. P. 56(c)(1)(a))]. The Court further advised that:
An affidavit is a written statement under oath; that is,
a statement prepared in writing and sworn before a
notary public. An unsworn statement, made and
signed under the penalty of perjury, may also be
Affidavits or statements must be
presented by Plaintiff to this Court no later than
fourteen (14) days from the date of this Order and
must be filed in duplicate.
[Id. at 3-4 (citing Fed. R. Civ. P. 56(c)(4))]. Despite obtaining an extension
to respond to Defendants’ summary judgment motion, Plaintiff has filed
nothing in response.
[See Doc. 32; 9/1/2020 Docket Entry].
Plaintiff’s Complaint was submitted under penalty of perjury, however, it is
considered an affidavit for summary judgment purposes. See Goodman v.
Diggs, No. 18-7315, 2021 WL 280518, at *4, --- F.3d --- (4th Cir. 2021)
(holding the district court erred in failing to consider a prisoner plaintiff’s
verified, though superseded, complaints as affidavits on summary
judgment). The Court will, therefore, consider its evidentiary value here. Id.
This matter is now ripe for disposition.
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
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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). A fact is material only if it might affect the outcome of the suit under
governing law. Id.
The movant has the “initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal citations omitted).
Once this initial burden is met, the burden shifts to the nonmoving
party. The nonmoving party “must set forth specific facts showing that there
is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not
rely upon mere allegations or denials of allegations in his pleadings to defeat
a motion for summary judgment. Id. at 324. Rather, the nonmoving party
must oppose a proper summary judgment motion with citation to
“depositions, documents, electronically stored information, affidavits or
declarations, stipulations …, admissions, interrogatory answers, or other
materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). The nonmoving
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 5 of 24
party must present sufficient evidence from which “a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord
Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir. 1995).
When ruling on a summary judgment motion, a court must view the
evidence and any inferences from the evidence in the light most favorable to
the nonmoving party. Anderson, 477 U.S. at 255. “‘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.’” Ricci v. DeStefano, 129 S. Ct.
2658, 2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574,
The forecast of evidence in the light most favorable to the non-movant
is as follows:
On August 28, 2018, Plaintiff was transported from Guildford County
Detention Center to the BCDCF. He arrived at BCDCF at approximately 7:00
p.m. and was placed in a booking holding cell with twelve other men. [Doc.
1 at 6]. Each man had a chance to use the telephone. [Id.]. When Plaintiff
thought it was his turn to use the telephone, he tapped on the glass to get
Bollinger’s attention. Bollinger looked at Plaintiff, who motioned “phone” with
his hands. Bollinger motioned “one-minute” in response, but in a manner
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 6 of 24
that reflected it would be a while. [Doc. 30-3 at 9-10]. Plaintiff sat down and
“waited until it was [his] turn.” [Id. at 10].
After some time, Plaintiff pressed the button requesting that the cell
door be opened electronically by an officer. [Doc. 1 at 6; Doc. 30-3 at 7, 10:
Plaintiff’s Dep.]. After the holding cell door was opened, Plaintiff walked out
of the holding cell, told Defendants Bollinger and Marshall that he is deaf,
and signed “telephone” with his hands. [Id.; Doc. 30-3 at 7-8]. Bollinger said,
“no,” and told Plaintiff to get back into the holding cell. Plaintiff ignored
Bollinger’s order and kept signing “telephone” to Defendants. Bollinger then
came around the desk and started to push Plaintiff back into the cell. Plaintiff
said, “No, I want to use the tty.”4 [Id.; see Doc. 30-3 at 11-12]. Plaintiff then
pushed Bollinger’s hands from Plaintiff’s body. [Doc. 30-3 at 13]. Bollinger
and Marshall then turned Plaintiff around, “slammed handcuffs on [his] hands
too tight” and escorted him down the hallway to a padded cell. [Id.; see Doc.
30-3 at 13-14]. BCDCF Officer Greene also assisted in escorting Plaintiff to
the padded cell. [Doc. 30-5 at ¶ 7: Marshall Dec.].
In his deposition, Plaintiff testified that he “was frustrated” because he “needed to make
[his] phone calls” so that he could get out of jail. [Doc. 30-3 at 12]. Plaintiff was not a
detainee but was merely at BCDCF to attend a court appearance. As such, there was no
phone call Plaintiff could have made that could have prompted his release.
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 7 of 24
Once to the padded cell and before entering, Plaintiff tensed his body
but did cooperate and enter the cell. [Doc. 30-3 at 16-17]. Once in the
padded cell, Bollinger and Marshall lead Plaintiff to the corner of the cell and
then removed his right handcuff. [Doc. 1 at 6; Doc. 30-3 at 17]. Plaintiff
again signed that he wanted to use the telephone. Defendants became
aggravated and shoved Plaintiff down to the floor and slammed his head
against the wall. [Id.; Doc. 30-3 at 17-18]. Marshall immediately sprayed a
“short burst” of mace in Plaintiff’s eyes.5 [Id.; Doc. 30-3 at 19]. Bollinger then
slammed Plaintiff’s head against the wall and “started slapping and punching
at the side of [Plaintiff’s] head and then started stomping and kicking [his] left
leg and feet” while Plaintiff was on the floor. [Id. at 7]. Bollinger also applied
“Mandibular Angle Nerve pressure” behind Plaintiff’s right ear. Bollinger then
removed the handcuff from Plaintiff’s left hand. [Id.]. Plaintiff stood up.
Marshall pointed a taser in Plaintiff’s face and ordered Plaintiff to remove his
clothes. Plaintiff complied and “kind of threw [the clothes]” at Marshall. [Id.;
Doc. 30-3 at 18-20]. Plaintiff acknowledged that when his right handcuff was
removed and he gestured to use the phone again, Defendants may have
misunderstood and believed he was acting aggressively. [Doc. 30-3 at 18].
Marshall testifies that it was Officer Greene, not Marshall, who deployed the pepper
spray to gain Plaintiff’s compliance. [Doc. 30-5 at ¶ 9].
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 8 of 24
Plaintiff remained in the padded cell for approximately five hours. He
made numerous requests for a shower and drinking water to clean the
pepper spray off his face. These requests were refused. [Doc. 1 at 7].
Around 1:00 a.m., Bollinger escorted Plaintiff out of the padded cell and to
the shower so Plaintiff could clean his face. Bollinger then moved Plaintiff to
an isolated cell until his court appearance that day. [Id.; Doc. 30-3 at 21].
Plaintiff was placed in a segregation cell because he was charged with
violating various BCDCF rules of conduct relating to “his assault” and “failure
to follow orders.” [Doc. 30-4 at ¶ 16: Bollinger Dec.]. Inmates in segregation
cells are not allowed use of a phone. Inmates in segregation are, however,
allowed to file grievances. [Id.]. At no point was Plaintiff denied use of the
TTY telephone because of a discriminatory purpose. [Id. at ¶ 17]. Plaintiff
was simply required to wait his turn like other inmates. Having more than
one inmate out of the holding cell using the phone at a time would have
created a security risk and disrupted the orderly booking process. [See id.
at ¶ 18].
After his court appearance, Plaintiff was returned to BCDCF. He asked
again to use the TTY telephone. His request was refused. He was returned
to a segregation cell, where his requests to use the TTY telephone were
again denied. [Doc. 1 at 8]. On August 30, 2018, Plaintiff was transported
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 9 of 24
to Craven Correctional Institution. [Id.]. Plaintiff immediately went to the
medical area and saw a nurse regarding his injuries. [Id.].
BCDCF had a grievance policy at the relevant times.6 Pursuant to the
grievance policy, an inmate “may request a grievance from the respective
hallway officer.” [Doc. 30-7 at 2]. The inmate is to complete the form,
including information regarding the complaint, whether the grievance is a first
complaint or an appeal to a grievance response, and the relief sought by the
[Doc. 30-7 at 2-3].
All grievances are first addressed by the
Sergeant, or if not available, the Corporal. If the inmate is dissatisfied by the
initial response, the inmate may appeal the grievance response to the
Lieutenant. Finally, an inmate may appeal the Lieutenant’s decision to the
facility Administrator/Major. Copies of the response are given to the inmate
at each level. [Doc. 30-7 at 2].
In his sworn Complaint, Plaintiff acknowledged that his claim arose
while he was confined at the BCDCF. [Doc. 1 at 9]. Plaintiff alleged that he
“[did] not know” whether the facility had a grievance procedure or whether
such procedure covered some or all his claims. [Id.]. Plaintiff admitted that
he did not file a grievance regarding the facts giving rise to his claims here
BCDCF closed on December 31, 2019. [Doc. 30-6 at ¶ 2: Hensley Dec.]. Again, Plaintiff
filed his Complaint in this matter nearly 11 months earlier on January 30, 2019. [Doc. 1].
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 10 of 24
either at BCDCF or any other facility. [Id. at 10]. Plaintiff claims that he did
not file a grievance because he “was only at BCDCF for two days” and the
“officers refused to communicate with [him] when they [made] their round
check.”7 [Id. at 11]. There is no forecast of evidence, however, that Plaintiff
requested a grievance form or was denied access to submit a grievance.
Failure to Exhaust Administrative Remedies
Defendants argue that the Plaintiff failed to exhaust his administrative
remedies prior to filing this action and, therefore, his Complaint should be
dismissed pursuant to the Prison Litigation Reform Act (“PLRA”). [Doc. 30
at 2, 14-17].
The Prison Litigation Reform Act (“PLRA”) requires a prisoner to
exhaust his administrative remedies before filing an action under § 1983 or
under other federal law.8 42 U.S.C. § 1997e(a). The PLRA provides, in
pertinent part, that “[n]o action shall be brought with respect to prison
At his deposition, Plaintiff testified that he knew that BCDCF had a grievance policy for
inmates, but he did not file a grievance because the officer would not talk to him or let him
have paper. [Doc. 30-3 at 24-25].
The exhaustion requirement applies with equal force to claims brought under the ADA
and the Rehab Act. See Fauconier v. Clarke, 966 F.3d 265, 274 (4th Cir. 2020). (“[W]e
conclude that [plaintiff’s] ADA claim, brought under a federal statue and challenging the
enforcement of prison employment policies, was subject to the PLRA’s exhaustion
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 11 of 24
conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” Id. 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). The
Court ruled that “exhaustion in cases covered by § 1997e(a) is now
mandatory.” Id. at 524 (citation omitted). The Porter Court stressed that,
under the PLRA, exhaustion must take place before the commencement of
the civil action to further the efficient administration of justice. Id.
In Woodford v. Ngo, the Supreme Court held that the PLRA exhaustion
requirement requires “proper” exhaustion: “Administrative law . . . requir[es]
proper exhaustion of administrative remedies, which ‘means using all steps
that the agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).’” 548 U.S. 81, 90 (2006) (quoting Pozo
v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Further, “[t]here is no
question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S.
199, 211 (2007) (citing Porter, 534 U.S. at 524).
Finally, it is well-settled
that a prisoner may not exhaust his administrative remedies during the
pendency of a Section 1983 action; rather, he must fully exhaust all steps of
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 12 of 24
the administrative process before filing his lawsuit. See Germain v. Shearin,
653 Fed. Appx. 231, 234 (4th Cir. 2016); French v. Warden, 442 F. App’x
845, 846 (4th Cir. 2011).
A prisoner, however, “need not exhaust remedies if they are not
‘available.’” Ross v. Blake, 136 S. Ct. 1850, 1855 (2016) (quoting 42 U.S.C.
An administrative remedy is not “available” if a prisoner,
“through no fault of his own, was prevented from availing himself of it.”
Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).
A remedy is
unavailable (1) where the procedure operates as a simple dead end because
officials are unable or consistently unwilling to provide any relief to aggrieved
inmates; (2) where the grievance process itself is so incomprehensible that
no ordinary prisoner can discern or navigate it; and (3) where administrators
prevent inmates from availing themselves of remedies by way of
machination, misrepresentation , or intimidation. Ross, 136 S. Ct. at 185860.
Transfer to another facility, however, does not affect a prisoner’s
obligation to exhaust his administrative remedies before filing suit. Jackson
v. Studel, No. 3:10-cv-177-MU-2, 2010 WL 1689095, at *2 (W.D.N.C. Apr.
20, 2010) (string cite omitted).
Here, the uncontroverted forecast of evidence shows that there was a
grievance policy at the BCDCF, that Plaintiff never asked for a grievance
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 13 of 24
form while there or to submit a grievance, and that Plaintiff never submitted
a grievance related to the facts at issue here while at BCDCF or elsewhere.
While Plaintiff claims he was refused paper and pen during his short stay at
BCDCF, he has forecast no evidence that the grievance procedure was
unavailable to him. See Ross, 136 S. Ct. at 1858-60.
Plaintiff, therefore, has not presented a sufficient forecast of evidence
to survive Defendants’ Motion for Summary Judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (the plaintiff can survive a motion for
summary judgment by providing sufficient evidence so that “a reasonable
jury could return a verdict for [the plaintiff].”) Accordingly, the Defendants’
Motion for Summary Judgment will be granted on this ground. Because
dismissals based on the failure to exhaust administrative remedies are
without prejudice, the Court will also address the other grounds for summary
judgment asserted by Defendants. See Dillard v. Anderson, No. 2:13-CV31-FDW, 2010 WL 9553022, at *2 n.2 (W.D.N.C. Sept. 6, 2010) (Whitney,
C.J.). (“A dismissal for failure to exhaust administrative remedies is without
Plaintiff claims that his rights under the First Amendment were violated
because Defendants Bollinger and Marshall denied him use of the TTY
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 14 of 24
Prisoners generally have a First Amendment right “to
communicate with persons outside prison walls.” Valdez v. Rosenbaum, 302
F.3d 1039, 1048 (9th Cir. 2002). “Use of a telephone provides a means of
exercising this right.” Id. A prison regulation that impinges on an inmate’s
constitutional right “is valid if it is reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 92, 107 S. Ct. 2254 (1986). In
conducting the “reasonableness” inquiry, Turner instructs consideration of
four factors: (1) whether there is a valid, rational connection between the
restriction and the legitimate governmental interest put forward to justify it;
(2) whether there are alternative means of exercising the right; (3) whether
accommodating the asserted constitutional right will have a significant
negative impact on prison guards and other inmates, and on the allocation
of prison resources generally; and (4) whether there are obvious, easy
alternatives to the restriction showing that it is an exaggerated response to
prison concerns. Id. at 89-90.
Here, Plaintiff complains that he was denied access to a TTY
telephone. The forecast of evidence shows, however, that he was never
denied access to a telephone while in the holding cell. Rather, Plaintiff was
made to wait his turn to use the telephone and Plaintiff simply wanted access
to the phone before the circumstances safely permitted. Furthermore, while
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 15 of 24
Plaintiff was denied access to a telephone when he was housed in a
segregation cell for less than two days, prison policy precluded segregation
inmates from having phone access. Restricting phone use by segregation
inmates certainly advances “legitimate penological interests.” See Turner,
482 U.S. at 92. Allowing segregation inmates like Plaintiff phone access
would present obvious unnecessary safety and prison resource issues. As
such, no genuine issue of material fact remains on Plaintiff’s First
Amendment claim. The Court will, therefore, grant Defendants’ motion for
summary judgment on this claim with prejudice.
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
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 16 of 24
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.” Whitley, 475 U.S. at 320-21.
Furthermore, the Supreme Court has made clear that “[a]n inmate who
is gratuitously beaten by guards does not lose his ability to pursue an
excessive force claim merely because he has the good fortune to escape
without serious injury.” Wilkins v. Gaddy, 130 S. Ct. 1175, 1178-79 (2010).
The forecast of evidence here is insufficient to show that Defendant
Marshall used excessive force on Plaintiff. At most, Defendant Marshall
pushed Plaintiff to the wall of a padded cell and deployed a short burst of
pepper spray directed at the Plaintiff’s eyes. The forecast of evidence shows
that Defendant Marshall took this action when Plaintiff had raised his right
hand from behind his back after his right handcuff was removed in a manner
Plaintiff acknowledges could have been perceived as threatening. This
minimal response by Marshall to regain control of a potentially combative
inmate does not constitute excessive force. See Whitley, 475 U.S. at 32021. The Court will, therefore, dismiss Plaintiff’s Eighth Amendment claim
against Defendant Marshall with prejudice.
As to Defendant Bollinger, however, the result is different.
forecast of evidence, in the light most favorable to Plaintiff as the non17
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movant, shows that once Plaintiff was in the padded cell and after Marshall
deployed pepper spray on Plaintiff, Bollinger slammed Plaintiff’s head
against the wall, slapped and punched the side of Plaintiff’s head, and
stomped and kicked Plaintiff’s left leg and feet while Plaintiff was on the floor.
The forecast of evidence also shows that Bollinger applied a pressure
technique behind Plaintiff’s left ear. As such, there remain genuine issues
of material fact as to whether Bollinger’s use of force on Plaintiff was
excessive. A reasonable juror may find that such force was used maliciously
or sadistically for the purpose of causing harm, rather than to maintain or
restore discipline. The Court, therefore, cannot dismiss Plaintiff’s Eighth
Amendment claim against Defendant Bollinger with prejudice.
Plaintiff’s ADA claim is based on the alleged denial of a TTY telephone.
[Doc. 1 at 4; see Doc. 1 at 6]. Under Title II of the ADA, “no qualified
individual with a disability shall, by reasons of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or
activities of a public entity.” 42 U.S.C. § 12132.
To establish a prima facie face under Title II of the ADA, a plaintiff must
show that: (1) he has a disability; (2) he was either excluded from
participation in or denied the benefits of some public entity’s services,
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 18 of 24
programs, or activities for which he was otherwise qualified; and (3) such
exclusion, denial of benefits, or discrimination was by reason of his disability.
Miller v. Hinton, 288 Fed. App’x 901, 902 (4th Cir. 2008) (citations omitted).
States are obligated to make “reasonable modifications” to enable the
disabled person to receive the services or participate in programs or
activities. 42 U.S.C. § 12131(2). The duty of reasonable accommodation,
however, must also take into account whether the institution’s actions are
related to legitimate penological interests. See Turner, 482 U.S. at 89;
Tanney v. Boles, 400 F.Supp.2d 1027, 1050 (E.D. Mich. 2005) (noting that
courts have applied Turner to ADA and Rehab Act claims). A plaintiff must
also establish an actual injury from any alleged ADA or Rehab Act violation.
See Rosen v. Montgomery Cty. Md., 121 F.3d 154, 158 (4th Cir. 1997).
The forecast of evidence here is insufficient to support a finding that
Plaintiff was denied an accommodation on the basis of his disability. The
accommodation for Plaintiff’s disability, the TTY telephone, was readily
available at BCDCF and located in the same place as the traditional
telephone. Plaintiff had even used it on a previous occasion without issue.
Plaintiff simply wanted access to the TTY telephone before it was his turn to
use it and before Defendants could safely allow him to do so. As such, there
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is no genuine issue of fact on Plaintiff’s ADA claim and it will be dismissed
with prejudice as to all Defendants.
Rehab Act Claim
Plaintiff’s Rehab Act claim is based also on the alleged denial of a TTY
telephone. [Doc. 1 at 4; see Doc. 1 at 6]. The Rehabilitation Act provides
that “no otherwise qualified individual with a disability … shall, solely by
reason of [his] disability, be excluded from participation in, be denied the
benefits of, or be subject to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a). The analysis
under the Rehab Act is generally the same as under the ADA. Freilich v.
Upper Chesapeake Health, Inc., 313 F.3d 205, 214 (4th Cir. 2002). Claims
under the Rehab Act, however, require a showing of discrimination “solely
by reason of” disability, 29 U.S.C. § 794(a), while under the ADA, a plaintiff
must only show discrimination “by reason of” disability, 42 U.S.C. § 12132.
As such, the causation standards are “significantly dissimilar.” Rectors &
Visitors of George Mason Univ., 411 F.3d 474, 498 n. 17 (4th Cir. 2005)
(citation omitted). To sustain a claim under the Rehab Act, a plaintiff must
also show that the program or activity in question receives federal financial
assistance. Thomas v. The Salvation Army Southern Territory, 841 F.3d
632, 641 (4th Cir. 2016).
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 20 of 24
Here, because the forecast of evidence is insufficient to sustain
Plaintiff’s ADA claim, Plaintiff’s claim under the Rehab Act also fails.
Wicomico Nursing Home v. Padilla, 910 F.3d 739, 751 (4th Cir. 2018)
(dismissing the plaintiff’s Rehab Act claim because the plaintiff failed to state
a viable ADA claim). Moreover, Plaintiff failed to plead, and the forecast of
evidence does not support, that Defendant BCDCF, or any of its programs
or activities, received federal funds. Plaintiff’s Rehab Act claim, therefore,
also fails for this reason.9 As such, the Court will dismiss Plaintiff’s Rehab
Act claim with prejudice as to all Defendants.
To establish an equal protection violation, Plaintiff first must
demonstrate that he has been treated differently from others with whom he
is similarly situated, and that the unequal treatment was the result of
intentional or purposeful discrimination. Morrison v. Garraghty, 239 F.3d
648, 654 (4th Cir. 2001). In doing so, the plaintiff must set forth “specific,
non-conclusory factual allegations that establish an improper [discriminatory]
Furthermore, the ADA and Rehab Act do not allow claims against government officials
in their individual capacities, in any event. Baird ex. Rel. Baird v. Rose, 192 F.3d 462,
472 (4th Cir. 1999). As such, Plaintiff’s individual capacity claims against Bollinger and
Marshall under these provisions would be dismissed, in any event.
Based on the nature of the facts alleged, the Court assumes that Plaintiff intended to
implicate the Fourteenth Amendment’s Equal Protection Clause.
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 21 of 24
motive.” Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003) (quoting
Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001)).
Plaintiff’s Fourteenth Amendment claim is based on the acts that
allegedly deprived Plaintiff of his rights under the ADA and the Rehab Act.
Again, the forecast of evidence does not show that Plaintiff was discriminated
against because of his disability. Plaintiff’s Fourteenth Amendment claim,
therefore, fails and will be dismissed with prejudice.
Defendants Bollinger and Marshall also claim that they are entitled to
qualified immunity on Plaintiff’s individual capacity § 1983 claims. [Doc. 30
“Qualified immunity protects officers who commit constitutional
violations but who, in light of clearly established law, could reasonably
believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011) (en banc). “To determine whether an officer is entitled to
qualified immunity, the court must examine (1) whether the plaintiff has
demonstrated that the officer violated a constitutional right and (2) whether
that right was clearly established at the time of the alleged violation.” E.W.
ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation
The doctrine of qualified immunity “gives government
officials breathing room to make reasonable but mistaken judgments and
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 22 of 24
protects all but the plainly incompetent or those who knowingly violate the
law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation
Here, because Plaintiff has not forecasted evidence that Defendant
Marshall violated a constitutional right, Defendant Marshall is entitled to
qualified immunity on all Plaintiff’s individual capacity claims. Defendant
Bollinger, however, is entitled to such immunity only on Plaintiff’s individual
capacity claims under the First and Fourteenth Amendments because an
issue of fact remains as to whether he used excessive force on Plaintiff under
the Eighth Amendment. As such, the Court will grant Defendants’ Motion for
Summary Judgment based on qualified immunity accordingly.
In sum, the Court will dismiss Plaintiff’s Eighth Amendment claim
against Defendant Bollinger without prejudice and the remainder of Plaintiff’s
claims against all Defendants with prejudice as herein provided.
IT IS, THEREFORE, ORDERED that Defendants’ Motion for Summary
Judgment [Doc. 29] is GRANTED. Plaintiff’s excessive force claim against
Defendant Bollinger under the Eighth Amendment is hereby DISMISSED
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 23 of 24
WITHOUT PREJUDICE and Plaintiff’s remaining claims are hereby
DISMISSED WITH PREJUDICE.
The Clerk is instructed to correct the docket in this matter to reflect
Defendant FNU Bollinger’s true full name, Jamison Bollinger, and Defendant
FNU Marshall’s true full name, David Marshall.
The Clerk is instructed to terminate this action.
IT IS SO ORDERED.
Signed: February 16, 2021
Case 1:19-cv-00032-MR Document 34 Filed 02/17/21 Page 24 of 24
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