Crawford v. Burke County District Attorney's Office et al

Filing 44

MEMORANDUM OF DECISION AND ORDER granting Defendant's 36 Motion for Summary Judgment and this action is hereby DISMISSED with prejudice. FURTHER ORDERED that Plaintiff's 43 Motion in response to Defendant's Material Facts" is DENIED. Signed by Chief Judge Martin Reidinger on 6/7/2021. (Pro se litigant served by US Mail.)(khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:19-cv-00307-MR

CHRISTOPHER GENE
CRAWFORD,

)
)
)
Plaintiff,
)
)
vs.
)
)
BRADLEY RICHARDS, et. al.,
)
)
Defendants.
)
___________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER comes before the Court on Defendants’ Motion for
Summary Judgment [Doc. 36] and on Plaintiff’s “‘Motion on response to’
Defendants Material Facts” [Doc. 43].
I.

PROCEDURAL BACKGROUND
On October 25, 2019, Plaintiff Christopher Gene Crawford (“Plaintiff”),

proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983 for the
violation of his civil rights during and after his trial at the Burke County
Courthouse (the “Courthouse”) in Morganton North Carolina. [Doc. 1]. He
named the Burke’s County Sheriff’s Office (“Sheriff’s Office”) and the Burke
County District Attorney’s Office (“DA’s Office”) as Defendants. With his
Complaint under § 1983, Plaintiff filed a separate complaint for negligence

against Wayne Clontz, his attorney; the Honorable Lisa Bell1; Michelle
Ledford, the Assistant District Attorney for Burke County; and the Sheriff’s
Office and DA’s Office. [Doc. 1-2 at 1-3]. For the purposes of initial review,
the Court considered these complaints collectively as one complaint, treating
Plaintiff’s negligence complaint as simply stating a cause of action for
negligence as if propounded in Plaintiff’s § 1983 Complaint. [See Doc. 13 at
3].
Plaintiff alleged that he was on trial for a Class H Felony and that Judge
Bell declared a mistrial and revoked Plaintiff’s bond. [Doc. 1 at 2]. Plaintiff
further alleged that the bailiffs in the courtroom then put him in handcuffs and
took him to the hallways behind the courtroom, where they threw him to the
ground, knocking out his tooth; kicked him, breaking two ribs; and broke his
tailbone. [Id.].
The Court dismissed Defendants Burke County District Attorney’s
Office, Judge Bell, and Michelle Ledford with prejudice and Defendants
Clontz and the Sheriff’s Office without prejudice for the reasons stated in the
Court’s Order. [Doc. 13 at 4-6]. The Court, however, allowed Plaintiff to
amend his complaint to identify the Sheriff’s Office employee(s) responsible
Plaintiff incorrectly identified Judge Bell as “Belle.” [See Doc. 1-2 at 2-3]. The Court will
hereinafter refer to Judge Bell by her correct name and will direct the Clerk to update the
docket in this matter accordingly.
1

2

for the alleged use of excessive force outside the courtroom. [Id.].
Plaintiff timely amended his complaint. [Doc. 15]. In his Amended
Complaint, Plaintiff identifies Defendants Bradley Richards and FNU
Huffman2 as the bailiffs who allegedly used excessive force on Plaintiff in the
Courthouse. [Doc. 15 at 5; Doc. 15-1 at 6]. Plaintiff also asserted a new
claim that, after he was beaten at the Courthouse, he was transported to the
Burke Catawba District Confinement Facility (BCDCF), where Richards and
Huffman continued the abuse and were joined by Defendants Josh Smith
and FNU Sickjack,3 whom Plaintiff identified as a Sergeant and Lieutenant
at BCDCF, respectively.

[Doc. 15-1 at 6].

Plaintiff’s claims against

Defendants Richards, Huffman, Siciak, and Smith survived initial review
based on the use of excessive force4,5 [Doc. 17] and are the only claims

Defendant FNU Huffman has since been identified as Jonathan Huffman [see Doc. 384], and the Court will direct the Clerk to update the docket in this matter to reflect this
Defendant’s true name.
2

Defendant “FNU Sickjack” has since been identified as Patricia Siciak [see Doc. 38-10],
and the Court will also direct the Clerk to update the docket in this matter to reflect this
Defendant’s true name.
3

Plaintiff named Defendants Richards, Huffman, and Siciak in their official capacities only.
[Doc. 15 at 2-3]. Plaintiff did not specify the capacity in which he purports to sue
Defendant Smith. [See Doc. 15-1 at 1]. The Court assumes, therefore, that Plaintiff
intended to sue Smith in his individual and official capacities.
4

Plaintiff also named Wayne Clontz, his attorney, and Bryan Jones as Defendants in the
Amended Complaint. [Doc. 15-1 at 1]. The Court dismissed these Defendants on initial
review of Plaintiff’s Amended Complaint for the reasons stated in that Order. [Doc. 17].
5

3

remaining for disposition here.
On December 14, 2020, Defendants filed a Motion for Summary
Judgment. [Doc. 36]. Defendants argue that summary judgment should be
granted because Plaintiff failed to exhaust administrative remedies, because
Plaintiff’s claims fail as a matter of law, because Defendants did not use
excessive force on Plaintiff, and because qualified immunity bars Plaintiff’s
claims against Defendants. [Id.].
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. 40]. 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,
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
4

notary public. An unsworn statement, made and
signed under the penalty of perjury, may also be
submitted.
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))].
In response, Plaintiff filed an improper two-page letter directed to the
undersigned that is not in the form of an affidavit or signed under penalty of
perjury. [See Doc. 48]. The Fourth Circuit recently made clear that a district
court is to consider verified prisoner complaints as affidavits on summary
judgment “when the allegations contained therein are based on personal
knowledge.” Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021).
In support of their summary judgment motion, Defendants have
submitted a brief, numerous affidavits, various BCDCF records relating to
Plaintiff, incident reports, and a Statement of Undisputed Material Facts.
[Docs. 37, 38, 38-1 through 38-11, 39]. Plaintiff responded to Defendants’
motion [Docs. 43, 43-1] but submitted nothing in a form acceptable at
summary judgment.6

And neither of Plaintiff’s complaints were verified or

In his response, Plaintiff submitted certain affidavits and other evidence submitted by
Defendants, the Sheriff’s Office Use of Force Policy, and what appear to be excerpts from
Defendants’ Answer, along with his assessment of these materials. [Docs. 43, 43-1].
Plaintiff also restated some factual allegations against Defendants. [See Doc. 43-1 at 3234]. In his response, Plaintiff also moved to sue Defendants in their official and individual
capacities. [Id. at 14]. Although improperly brought, the Court will construe Plaintiff’s
6

5

otherwise submitted under penalty of perjury and, therefore, cannot be
considered for their evidentiary value here. See Goodman, 986 F.3d at 49899. Thus, in terms of evidentiary forecast, the Defendants’ is unrefuted.
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). 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).

motion as one to amend his Complaint, which the Court will deny as untimely. [See Doc.
31].
6

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). Courts “need
not accept as true unwarranted inferences, unreasonable conclusions, or
arguments.” Eastern Shore Mkt. Inc. v. J.D. Assoc.’s, LLP, 213 F.3d 174,
180 (4th Cir. 2000). The nonmoving 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. Facts, however, “must be
viewed in the light most favorable to the nonmoving party only if there is a

7

‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127
S.Ct. 1769, 1776 (2007). As the Supreme Court has emphasized,
“[w]hen the moving party has carried its burden under
Rule 56(c), the opponent must do more than simply
show there is some metaphysical doubt as to the
material facts …. 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. Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87, 106 S. Ct. 1348 (1986)
(footnote omitted). “[T]he mere existence of some
alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-28, 106 S. Ct.
2505 (1986). When opposing parties tell two
different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for
summary judgment.7
Scott, 550 U.S. at 380, 127 S.Ct. at 1776.
III.

FACTUAL BACKGROUND
Defendants’ uncontroverted forecast of evidence shows the following.
A.

The Courtroom and Hallway

On March 27, 2019, Defendant Bradley Richards served as a bailiff
As noted, Plaintiff has presented no evidence in a form acceptable at this stage of the
proceedings. Moreover, the story told by Plaintiff, in his complaints, is “blatantly
contradicted by the record” such that “no reasonable jury could believe it.” The Court,
therefore, would be unable to adopt Plaintiff’s version for purposes of this motion, in any
event. See Scott, 550 U.S. at 380, 127 at 1769.
7

8

during Plaintiff’s criminal trial in Courtroom #1 of the Burke County
Courthouse. Other bailiffs on duty included including Deputies Matthew
Randall, Shawn Annas, and Jeremy Penland. [Doc. 38-4 at ¶¶ 3, 6: Huffman
Dec.; Doc. 38-1 at ¶ 4: Annas Dec.; Doc. 38-5 at ¶ 3: Norman Dec.; Doc. 366 at ¶ 5: Penland Dec.; Doc. 38-7 at ¶ 5: Randall Dec.]. Lieutenant Rodney
Norman, who testified during the trial, was also present in the Courtroom.
[Doc. 38-5 at ¶ 3: Norman Dec.].

Throughout the day, several Sheriff’s

Office deputies and officers observed Plaintiff fidgeting, shaking, acting
strangely, and appearing anxious, excited, jittery, and agitated. [Doc. 38-4
at ¶ 5; Doc. 38-5 at ¶ 4; Doc. 38-7 at ¶ 5; see Doc. 38-8 at ¶ 4]. Officers also
observed Plaintiff speaking loudly with his attorney, which was distracting for
jurors. [Doc. 38-5 at ¶ 4; Doc. 38-7 at ¶ 6].
Judge Bell presided over the trial. She instructed the Plaintiff to stop
being loud and verbal. [Doc. 38-7 at ¶ 6]. Plaintiff’s attorney also asked
Plaintiff to stop talking. [Id.]. Plaintiff continued to speak out loud and
interrupt witnesses. [Id. at ¶ 7]. Judge Bell warned Plaintiff that she would
declare a mistrial if he continued this behavior. [Id.]. Despite this warning,
Plaintiff continued until Judge Bell took a recess, declared a mistrial,
requested additional bailiffs, and placed Plaintiff in the custody of the
Sheriff’s Office. [Doc. 38-5 at ¶¶ 4-5; Doc. 38-7 at ¶¶ 7-8; Doc. 38-1 at ¶ 5;
9

Doc. 38-6 at ¶ 6]. Thereafter, Plaintiff became aggravated and erratic, and
began to cry and scream, “Josh Lives!” [Doc. 38-5 at ¶ 5; Doc. 38-4 at ¶ 7;
Doc. 38-7 at ¶ 9; Doc. 38-8 at ¶ 6; Doc. 38-1 at ¶ 6; Doc. 38-6 at ¶ 6].
Defendant Huffman escorted Plaintiff out of the Courtroom and into the
hallway with the assistance of Deputies Randall and Penland. [Doc. 38-6 at
¶ 7; Doc. 38-7 at ¶ 9]. Plaintiff continued to yell loudly enough such that
Lieutenant Norman, who was still inside the Courtroom, had to come out to
the hallway to assist the deputies who were escorting Plaintiff to the Bailiff’s
Office. [Doc. 38-5 at ¶ 6].
Deputy Annas remained behind in the Courtroom but could hear what
was being said in the hallway. [Doc. 38-1 at ¶ 8]. He heard a male voice
say, “Turn around and face the wall and put your hands behind your back.”
[Id.]. Plaintiff actively resisted and screamed at the deputies that they should
speak to Judge Bell about changing her decision. [Doc. 38-5 at ¶ 7; Doc.
38-4 at ¶ 8; Doc. 38-6 at ¶ 9]. Defendant Huffman handcuffed Plaintiff and
attempted to perform a pat down, but Plaintiff leaned against the wall, slid to
his knees, and claimed that he could not walk because he was “going to shit
[him]self.” [Doc. 38-4 at ¶¶ 9-11; Doc. 38-5 at ¶ 7; Doc. 38-7 at ¶ 9; Doc 388 at ¶ 7; Doc. 38-6 at ¶ 9]. Plaintiff continued to resist and began screaming
phrases, such as “Josh Lives!,” “I am shitting myself,” “I have bad guts,” and
10

“I didn’t buy my kids Christmas presents.” [Doc. 38-8 at ¶ 8; Doc. 38-1 at ¶
9].
Defendant Huffman, along with Deputy Randall, picked up Plaintiff off
his knees and escorted him to the Bailiff’s Office while Deputy Richards
followed. [Doc. 38-4 at ¶ 12; Doc. 38-7 at ¶ 10]. Plaintiff resisted, went limp,
refused to walk freely, and attempted to slow them down. [Doc. 38-7 at ¶ 10;
Doc. 38-6 at ¶ 10]. Lieutenant Norman instructed the deputies to use their
verbal commands and to ensure that such commands were loud enough for
Plaintiff and others to hear. [Doc. 38-5 at ¶ 7].
At some point, Defendant Richards noticed that Plaintiff was about to
spit on Deputy Randall. [Doc. 38-8 at ¶10; Doc. 38-7 at ¶ 11]. Defendant
Richards turned Plaintiff’s head forward to prevent him from spitting on
Deputy Randall. [Doc. 38-8 at ¶ 11; Doc. 38-7 at ¶ 11]. Plaintiff continued
to resist transport, voluntarily went to the floor, and proceeded to kick and
scream that he was defecating himself and had gastrointestinal issues. [Doc.
38-7 at ¶ 12; Doc. 38-8 at ¶ 12]. Defendant Huffman lifted Plaintiff from the
floor and carried him to the Bailiff’s Office. [Doc. 38-7 at ¶ 14; Doc. 38-8 at
¶ 12].
Lieutenant Norman walked with the deputies and Plaintiff until they
reached the Bailiff’s Office and ensured the deputies were giving good
11

commands and following proper protocol. [Doc. 38-6 at ¶ 8; Doc. 38-7 at ¶
13]. At this point, the deputies placed Plaintiff in a chair, and Plaintiff stated,
“I can’t breathe.” [Doc. 38-7 at ¶ 13]. Lieutenant Norman observed that
Plaintiff was upset and hyperventilating and instructed the deputies to loosen
Plaintiff’s tie and/or unbutton his shirt. [Id.]. After this, Plaintiff said he was
fine. [Id.]. While Plaintiff was still sitting in the chair, Defendants Huffman
and Richards placed Plaintiff in restraints. [Doc. 38-4 at ¶ 14].
Lieutenant Norman then complimented the deputies for the way they
handled the situation and returned to the courtroom, as did Deputy Randall.
[Doc. 38-5 at ¶ 9; Doc. 38-4 at ¶ 13; Doc. 38-7 at ¶ 15]. Norman later called
Sheriff’s Office Captain Greg Huntley to inform him how well the deputies
handled the situation. [Doc. 38-5 at ¶ 9]. At no time did any deputy or other
individual use unnecessary or excessive force on Plaintiff. [Doc. 38-7 at ¶
15; Doc. 38-5 at ¶ 9; Doc. 38-6 at ¶ 11]. Any minimal force used during this
incident was merely a response to Plaintiff’s resistance to being escorted to
the Bailiff’s Office. [Doc. 38-7 at ¶ 16]. After placing Plaintiff in restraints,
Defendants Huffman and Richards escorted Plaintiff down the back stairwell
into the transport car. [Doc. 38-4 at ¶¶ 15-16].
B.

Transport to BCDCF

On the way to BCDCF, Plaintiff sat in the back seat of the transport car
12

with his head hung down. [Doc. 38-4 at ¶ 17]. He appeared to be passed
out, asleep, or potentially under the influence of an intoxicating substance.
[Doc. 38-4 at ¶ 17; Doc. 38-8 at ¶¶ 13-14]. Defendant Richards had to wake
him up. [Doc. 38-8 at ¶ 13]. During transport, Defendant Richards called the
BCDCF to inform them how agitated Plaintiff had appeared. [Id. at ¶ 14].
Defendant Huffman kept a close eye on Plaintiff’s respirations during the
entire transport. [Id.]. When asked whether he was okay, Plaintiff would
mumble something in response. [Doc. 38-4 at ¶ 13].
C.

Intake and Placement in Padded Cell at BCDCF

Upon arrival at the BCDCF, a detention officer assisted Plaintiff out of
the transport car and into the facility for intake procedures. [Doc. 38-4 at ¶
18]. At this point, the Sheriff’s Office no longer had custody of Plaintiff. [Id.].
Although Plaintiff was no longer in the custody of the Sheriff’s Office,
Defendants Huffman and Richards followed BCDCF officers as they placed
Plaintiff in a padded cell. [Id. at ¶ 19; Doc. 38-8 at ¶ 15]. Defendants Huffman
and Richards removed Plaintiff’s restraints, as well as his clothes, to ensure
he had not defecated himself.

[Id.].

Defendant Siciak was working at

BCDCF on March 27, 2019 when Plaintiff was brought there. [Doc. 38-10 at
¶ 4: Siciak Dec.]. Defendant Siciak does not remember Plaintiff’s arrival that
day, but she is familiar with Plaintiff from previous occasions when he was
13

held at BCDCF. [Id.].
Standard procedure at BCDCF in March of 2019 called for inmates
who appeared inebriated, were violent or uncooperative, were suicidal as
determined by medical staff, or who otherwise needed observation to be
housed in padded cells. [See Doc. 38-10 at ¶ 7]. It was also standard
procedure, when placing inmates in padded cells, to remove the inmate’s
clothing and place them in a green safety smock commonly referred to as a
“turtle suit.” [Id. at ¶ 8; see Doc. 38-11 at ¶ 10: Smith Dec.]. At BCDCF,
padded cell checks were to be done every 15 minutes. Plaintiff was checked
on every 15 minutes, as indicated on the Daily Report of Inmate. [Doc. 3810 at ¶ 11 & pp. 8-9].
D.

No Evidence of Injury

Intake procedure at BCDCF included searching inmates before their
restraints were removed, looking them over for apparent injuries, asking
them personal and medical questions to assess whether additional medical
attention is needed, and reviewing the personal property form with them.
[Doc. 38-11 at ¶ 6]. Defendant Smith, a detention officer at BCDCF, was
working when Plaintiff arrived at BCDCF on March 27, 2019. Defendant
Smith was involved in Plaintiff’s intake. [Id. at ¶¶ 4-5]. Plaintiff’s intake forms
show that he had no visible injuries, no breathing difficulties, and that he did
14

not report any serious medical needs. [Doc. 38-11 at ¶ 6 & p. 8]. The intake
form also states that Plaintiff was not bleeding or complaining of pain. [Id. at
8].
When an incoming inmate needed medical attention on arrival, as
deemed necessary by medical staff, the inmate would be transported to the
hospital for evaluation. [Doc. 38-10 at ¶ 6; Doc. 38-11 at ¶ 9]. Had Plaintiff
needed medical attention at intake, Defendant Smith would have ensured
that Plaintiff was taken to a facility for treatment. [Doc. 38-11 at ¶ 12].
In a BCDCF “Intake/Sick-Call Record” dated March 28, 2019, a nurse
reported that “[s]taff states he was held in contempt of court yesterday; they
suspect illicit substance abuse.” [Doc. 38-10 at 6]. A medical examination
of Plaintiff was performed, which was normal, and “NO injury [was] reported.”
[Id.]. Had Plaintiff reported any injuries or the need for medical attention, or
had BCDCF medical staff observed any injuries, he would have been further
evaluated and treated as appropriate. [Id. at ¶ 13].
E.

Grievance Procedure and Exhaustion

In March 2019 and otherwise, BCDCF had an internal grievance
process available to all inmates. [Doc. 38-10 at ¶ 14]. All inmates, including
Plaintiff, had the opportunity to file a grievance at any time about any subject.
Upon request, inmates were provided with grievance forms to use in
15

submitting grievances. The grievance forms were reviewed by a supervisor
and BCDCF would attempt to resolve the grievance. All inmates had multiple
opportunities to participate in the grievance process and would be afforded
the opportunity to speak with any officer of any rank if they desired to do so.
[Id.]. Plaintiff never filed a grievance at BCDCF. [Id.]. Had Plaintiff asked to
file a grievance, he would have been given unimpeded access to participate
in the grievance process. [Id.]. After BCDCF, Plaintiff was transferred to the
Caldwell County Jail. [Doc. 15 at 7]. Plaintiff also never filed any grievances
at Caldwell County Jail regarding the instant incident, BCDCF, any of the
Defendants here, or otherwise. [Doc. 38-9 at ¶¶ 7-8: Shook Dec.].
IV.

DISCUSSION
A.

Failure to Exhaust Administrative Remedies

The Defendants argue that the Plaintiff failed to exhaust his
administrative remedies prior to filing this action and, therefore, that his
claims against Defendants Siciak and Smith related to the events allegedly
occurring at BCDCF should be dismissed pursuant to the Prison Litigation
Reform Act (“PLRA”). [Doc. 39 at 14-15 (citing 42 U.S.C. § 1997e(a))].
The PLRA states that “[n]o action shall be brought with respect to
prison 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
16

such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court stated
that “[t]here is no question that exhaustion is mandatory under the PLRA and
that unexhausted claims cannot be brought in court.” Id. at 211 (citing Porter,
534 U.S. at 524). The Supreme Court has highlighted that the exhaustion of
administrative remedies must occur before a civil action is commenced.
Porter v. Nussle, 534 U.S. 516 (2002). For example, a prisoner may not
exhaust his administrative remedies during the pendency of a Section 1983
action. See Germain v. Shearin, 653 Fed. Appx. 231, 234 (4th Cir. 2016);
French v. Warden, 442 Fed. App’x 845, 846 (4th Cir. 2011). In Anderson v.
XYZ Correctional Health Servs., 407 F.3d 674 (4th Cir. 2005), the Fourth
Circuit determined that:
[A]n inmate's failure to exhaust administrative
remedies is an affirmative defense to be pleaded and
proven by the defendant. That exhaustion is an
affirmative defense, however, does not preclude the
district court from dismissing a complaint where the
failure to exhaust is apparent from the face of the
complaint, nor does it preclude the district court from
inquiring on its own motion into whether the inmate
exhausted all administrative remedies.
Id. at 683. Exhaustion is excused “if a prisoner, through no fault of his own,
was prevented from availing himself of it.” Moore, 517 F.3d at 725. Futility,
however, is no exception to the exhaustion requirement. Reynolds v. Doe,
17

431 Fed. App’x 221, 222 (4th Cir. 2011) (citing Booth v. Churner, 532 U.S.
731, 741 n. 6 (2001)). Nor is an inmate’s ignorance of the requirement.
Goodwin v. Beasley, 2011 WL 835937, *3 (M.D.N.C. Mar. 3, 2011) (“Courts
have squarely rejected prisoners’ attempts to bypass the exhaustion
requirements by merely arguing lack of knowledge about the grievance
process.”); Smith v. Boyd, 2008 WL 2763841, *1 (D.S.C. July 11, 2008)
(“This court cannot waive the exhaustion requirement, which was specifically
mandated by Congress, based on Plaintiff’s ignorance of the requirement or
any perceived futility or inadequacy with the administrative grievance
process.”).
Here, the uncontroverted forecast of evidence shows that Plaintiff did
not file a written grievance. He did not file any grievance at the BCDCF or
at Caldwell County Jail. Plaintiff alleged in his Complaint that he filed a
grievance at Caldwell County Jail [Doc. 15 at 7], but Plaintiff concedes that
it did not relate to his instant claims. Moreover, he has presented no forecast
of evidence of such a grievance, whether related or not. Specifically, Plaintiff
offered no evidence to rebut Defendants’ showing that Plaintiff failed to
exhaust his administrative remedies before filing this lawsuit. Plaintiff did not
even address the issue of exhaustion in his summary judgment response.

18

Moreover, in his original Complaint, Plaintiff admitted that he had not
sought “relief from the appropriate administrative officials regarding the acts
complained of.” [Doc. 1 at 3]. Plaintiff filed an administrative remedies
statement shortly after his Complaint in which he tacitly acknowledged not
having exhausted his administrative remedies based on his belief that he did
not “have administrative remedies available at this time.” [Doc. 5]. In his
Amended Complaint, Plaintiff acknowledged not having filed a grievance “in
the jail, prison, or other correctional facility” where his claims arose but
claimed to have filed a grievance at Caldwell County Jail. [Doc. 15 at 7].
Plaintiff, however, admits that his claim in that grievance related not to the
instant matters but to “how [he] was being held without bond on a Class H
Felony and it being unconstitutional and how [he] was filing a Habeas
Corpus.” [Id.].
Plaintiff, therefore, has not presented a sufficient forecast of evidence
to survive the Defendants’ Motion for Summary Judgment as to Plaintiff’s
claims against Defendants Siciak and Smith, which allegedly occurred at the
BCDCF. 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, Defendants Smith and Siciak’s Motion for Summary Judgment
19

will be granted on this ground. Because dismissals based on the failure to
exhaust administrative remedies are without prejudice, the Court addresses
the other grounds for summary judgment asserted by all Defendants,
including Smith and Siciak. See Dillard v. Anderson, No. 2:13-CV-31-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
prejudice.”).
B.

Use of Excessive Force

The Fourteenth Amendment “protects a pretrial detainee from the use
of excessive force that amounts to punishment.” Graham v. Connor, 490
U.S. 386, 395 n.10 (1989). To state an excessive force claim, a pretrial
detainee must show only that the force “purposely or knowingly used against
him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389
(2015). The standard for assessing a pretrial detainee’s excessive force
claim is “solely an objective one.” Id. In determining whether the force was
objectively unreasonable, a court considers the evidence “from the
perspective of a reasonable officer on the scene, including what the officer
knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham,
490 U.S. at 396).

Considerations that bear on the reasonableness or

unreasonableness of the force include: the relationship between the need for
20

the use of force and the amount of force used; the extent of the plaintiff’s
injury; any effort made by the officer to temper or limit the amount of force;
the severity of the security problem at issue; the threat reasonably perceived
by the officer; and whether the plaintiff was actively resisting. Id.
Claims by a § 1983 plaintiff against law enforcement in their official
capacities are claims against the entity of which an officer is an agent.
Kentucky v. Graham, 105 S.Ct. 3099 (1985) (citing Monell v. New York City
Dep’t of Soc. Servs., 436 658, 690, n. 55, 98 S.Ct.2018, 2035, n. 55 (1978)).
To succeed on the merits of such a case, the plaintiff must prove that an
unconstitutional policy, practice, or custom of the entity “played a part” in the
claimed constitutional violation. Id. (citations omitted).
Plaintiff has sued Defendants Richards, Huffman, and Siciak in their
official capacities only. [Doc. 15 at 2-3]. Plaintiff’s claims against these
Defendants, therefore, survive only if the forecast of evidence shows that
BCDCF and Sheriff’s Office policies, customs, or practices played a part in
any constitutional violations.

Plaintiff, however, has presented no such

forecast of evidence. Plaintiff has alleged a use of excessive force, but he
has presented no evidence of such. Likewise, he has neither alleged nor
presented a forecast of evidence that any use of excessive force was the
result of any custom, policy, or practice. As such, there is no genuine issue
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of material fact remaining for trial and the Court will grant these Defendants’
motion for summary judgment on this ground.
Moreover, even if Plaintiff had asserted individual capacity excessive
force claims against these Defendants, they would fail, as does his claim
against Defendant Smith. The uncontroverted evidence before the Court
demonstrates that the force used on Plaintiff was reasonable and well within
constitutional limits. At the Courthouse, Plaintiff actively resisted movement
to the Bailiff’s Office after Judge Bell declared a mistrial. Plaintiff repeatedly
and voluntarily fell to the floor, screamed nonsensically at the deputies, and
attempted to spit on Deputy Randall. Any minimal force that was used on
Plaintiff to lift him upright and to avert his head from spitting on Deputy
Randall was necessary and objectively reasonable under the circumstances
created by Plaintiff. Furthermore, the intake of Plaintiff at BCDCF was in
keeping with their appropriate standard procedures. There is no forecast of
any evidence of the use of force, let alone excessive force, at BCDCF by any
Defendant or otherwise. As such, there is no genuine issue of material fact
as to Plaintiff’s excessive force claim, and it will be also dismissed on those
grounds.

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C.

Qualified Immunity

“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
marks omitted).

The doctrine of qualified immunity “gives government

officials breathing room to make reasonable but mistaken judgments and
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
marks omitted).
Here, because Plaintiff has not presented a forecast of evidence that
Defendants violated a constitutional right, Defendant Smith is entitled to
qualified immunity on Plaintiff’s individual capacity claim against him. To the
extent Plaintiff intended to assert individual capacity claims against
Defendants Huffman, Richards, and Siciak, these Defendants are also

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entitled to qualified immunity. As such, summary judgment for Defendants
would also be proper for Defendants on this ground.
V.

CONCLUSION
For the reasons stated herein, the Court will grant Defendants’ motion

for summary judgment.
ORDER
IT IS, THEREFORE, ORDERED that the Defendants’ Motion for
Summary Judgment [Doc. 36] is GRANTED and this action is hereby
DISMISSED with prejudice.
IT IS FURTHER ORDERED that Plaintiff’s “’Motion in responses to’
Defendants Material Facts” [Doc. 43] is DENIED.
The Clerk is respectfully instructed to update the docket in this matter
to reflect Defendant FNU Huffman’s true full name as Jonathan Huffman;
Defendant FNU Siciak’s true full name as Patricia Siciack; and Defendant
Lisa Belle’s name as Lisa Bell.
The Clerk is instructed to terminate this action.
IT IS SO ORDERED.
Signed: June 7, 2021

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