Jordan v. Daves et al
MEMORANDUM OF DECISION AND ORDER granting Deft McNemar's 58 Motion for Summary Judgment; granting Deft McNemar's 61 Motion to Seal; and instructing the Clerk to terminate this action. Signed by Chief Judge Martin Reidinger on 2/18/2021. (Pro se litigant served by US Mail.) (ejb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 5:18-cv-00143-MR
DECISION AND ORDER
THIS MATTER comes before the Court on Defendant’s Motion for
Summary Judgment [Doc. 58] and Defendant’s Motion to Seal [Doc. 61].
The Plaintiff Brandis Jordan, proceeding pro se, brings this action
pursuant to 42 U.S.C. § 1983 for the violation of his civil rights while
incarcerated at the Alexander Correctional Institution (“Alexander”). [Doc.
The Complaint asserted excessive force claims against Alexander
employees Officers FNU Daves (“Officer Daves”) and Bruce McNemar
(“Officer McNemar”) in their individual capacities for allegedly using
excessive force on Plaintiff. [Id.]. Plaintiff alleged that, on July 13, 2018 at
approximately 8:00 p.m., he was returning from the shower and in restraints.
Plaintiff alleges that Officer Daves gave Plaintiff a direct order to lift his arm
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so that Officer Daves could pat Plaintiff down. Plaintiff further alleges that
when Plaintiff complied, Officer McNemar punched Plaintiff and Officer
Daves slammed Plaintiff to the ground. Finally, Plaintiff alleges that once
Plaintiff was on the ground, both officers “began to beat [him] up” and Officer
Daves punched Plaintiff “all over the face and head until a code was called.”
[Doc. 1 at 3].
The Complaint survived this Court’s initial review under 28 U.S.C. §§
1915(e)(2) and 1915A and Plaintiff was allowed to proceed with his
excessive force claim. [Doc. 9]. Plaintiff never effected service on Defendant
Daves. After Plaintiff responded to the Court’s Order to Show Cause why
Defendant Daves had not been timely served, the Court dismissed
Defendant Daves as a Defendant in this matter for Plaintiff’s failure to show
good cause. [Docs. 35, 37, 39]. Thereafter, the Court entered a Consent
Protective Order governing the production and dissemination of certain
confidential documents and materials. [Doc. 41].
On July 27, 2020, Officer McNemar moved for summary judgment of
Plaintiff’s Complaint pursuant to Rule 56 of the Federal Rules of Civil
Procedure. [Doc. 58]. In support of his summary judgment motion, Officer
McNemar submitted a memorandum, his own Declaration, the Declaration
of Eric Dye, various prison records and policies, case law, and video footage
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of the alleged incident. [Docs. 59, 59-1, 59-2, 61-1 through 61-4]. At this
time, Officer McNemar also moved to seal some of these submissions. [Doc.
On August 10, 2020, 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 summary judgment motion and of
the manner in which evidence could be submitted to the Court. [Doc. 67].
Plaintiff timely filed a response to Officer McNemar’s summary judgment
motion. [Doc. 68]. Plaintiff’s response included two Declarations by Plaintiff,
submitted under penalty of perjury, and a document captioned “Motion for
Failure to Act: Response to Motion for Summary Judgment.”1 [Docs. 68, 681, 68-2].
This matter is now ripe for adjudication.
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
On June 24, 2020, before Defendant filed his summary judgment motion, Plaintiff filed
various documents that purported to be in opposition to Defendant’s motion. [See Doc.
55]. These documents are substantially similar to those Plaintiff filed after Defendant’s
motion in response thereto. [Cf. Doc. 55 and Doc. 68]. To the extent these documents
are submitted under penalty of perjury, the Court considers them together with Plaintiff’s
subsequent response in adjudicating Defendant’s summary judgment motion.
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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). Namely, the
nonmoving party must present sufficient evidence from which “a reasonable
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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
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
‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380
(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
Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007).
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The forecast of evidence, in the light most favorable to the non-movant,
is as follows.2
At the relevant times, Officer Bruce McNemar was a correction officer
trainee. [Doc. 60-6 at ¶ 6: McNemar Dec.]. On July 13, 2018, when Officer
McNemar was assisting Officer Daves in escorting Plaintiff from the shower
to Plaintiff’s cell in segregation, another inmate passed Plaintiff an envelope
filled with coffee from the other inmate’s cell door. [Id.; Doc. 68 at 2]. Officer
McNemar gave Plaintiff several direct orders to drop the item. [Id.]. Plaintiff
refused those orders and, after over a minute passed, Officers McNemar and
Daves placed Plaintiff against the wall in the hallway. [Id.; see Doc. 61-3
(Video Footage Ex.); Docs. 63, 65, & 70]. Plaintiff became agitated and
began using foul language toward the officers. [Id.]. Plaintiff and Officers
Daves and McNemar appeared to be conversing for over a minute with
Plaintiff against the wall. [Doc. 61-3]. Plaintiff then dropped the envelope on
the floor. Officer Daves bent down and picked it up. [Id.] Within seconds,
As noted, Defendant’s forecast of evidence includes the video footage of the incident,
which largely refutes and/or contradicts the Plaintiff’s forecast of evidence. Because a
plaintiff cannot defeat summary judgment by presenting evidence that is blatantly
contradicted by the record as a whole, the Court cannot adopt Plaintiff’s forecast of
evidence for the purpose of ruling on this motion to the extent that it is inconsistent with
the video evidence. See Scott, 550 U.S. at 380, 127 S. Ct. at 1776.
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Plaintiff quickly raised his arms over his head and turned toward Officer
McNemar. [Id.]. Officer Daves immediately brought Plaintiff to the ground.
[Id.]. Officer Daves struck Plaintiff several times. [Id.]. Officer McNemar
raised his arm toward Officer Daves and stopped Officer Daves’ blows. [Id.].
Officer McNemar attempted to hold Plaintiff’s legs and called for backup.
[Doc. 60-6 at ¶ 6]. Together, both Officers held Plaintiff still on the ground
for approximately 25 seconds before additional officers appeared to assist.
[Doc. 60-6 at ¶ 6]. When backup arrived, Officer McNemar left the wing.
[Id.]. Officer McNemar never struck Plaintiff in the face or anywhere else.
[Id. at ¶ 7].
Because Officers McNemar and Daves used force on Plaintiff, the
matter was referred to Lieutenant Dale Hunt for investigation. [See Doc. 601 at ¶¶ 5-8: Dye Dec.]. Plaintiff submitted a grievance regarding the use of
force incident. [Id. at ¶ 8]. Plaintiff’s grievance was immediately given to
Hunt as the Officer-in-Charge. [Id.]. As part of the investigation, Hunt
reviewed the surveillance footage of the incident at issue.
concluded in his report that Officer McNemar followed Alexander’s Standard
Operating Procedure related to the use of Force, Section .0453, and properly
handled the incident. [Id.]. Hunt found that no further action was required
and that Plaintiff’s claims that Officer McNemar assaulted him and/or used
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excessive force in attempting to restrain Plaintiff were without merit. [Id.].
Eric Dye, the Deputy Warden at Alexander, reviewed the surveillance video
capturing the use of force incident and saw no evidence that Officer
McNemar either assaulted Plaintiff or used excessive force in attempting to
restrain Plaintiff. [Doc. 60-1 at ¶¶ 3, 8]. As a result of the incident at issue,
Plaintiff was charged with three offenses, including interference with staff,
profane language, and disobeying an order. [Doc. 60-1 at ¶ 12]. These
charges were subsequently upheld.
Plaintiff was released from
custody on June 15, 2020. [Doc. 60-1 at ¶ 13].
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).
This subjective standard requires proof of malicious or sadistic action
by a prison official in order to make out an excessive force claim. This is
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because prison “[o]fficials are entitled to use appropriate force to quell prison
disturbances.” Williams, 77 F.3d at 761. “Because officials must act ‘in
haste, under pressure, and frequently without the luxury of a second chance,’
deliberate indifference is not a sufficiently rigorous standard.” Id. (citing
Whitley, 475 U.S. at 320). “Rather, in these circumstances, in order to make
out an Eighth Amendment claim, a prisoner must demonstrate that officials
applied force maliciously and sadistically for the very purpose of causing
harm.” Id. (internal quotations and citation omitted).
Here, Plaintiff contends that Officer McNemar violated his rights under
the Eighth Amendment by using excessive force on Plaintiff. The forecast of
evidence before the Court, however, leaves no genuine issue of material fact
for trial. The video evidence clearly shows that Officer McNemar did not use
excessive force on Plaintiff. Officer McNemar acted reasonably under the
circumstances, exercising only that minimal amount of force necessary to
restore order and discipline. Officer McNemar plainly evinced no purpose to
As such, the Court will grant Defendant’s Motion for Summary
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MOTION TO SEAL
Defendant, through counsel, moves the Court to seal Exhibits A, B, C,
and D to the Declaration of Eric Dye submitted in support of Defendant’s
Motion for Summary Judgment. [Doc. 61]. Defendant filed these documents
under seal. [See Docs. 61-1 through 61-4]. Defendant states that these
documents were produced in discovery and “reference information or
documents which are inmate records deemed confidential pursuant to
N.C.G.S. §§ 148-74 and -76; confidential pursuant to 34 U.S.C. § 30301, et
seq., 28 C.F.R. Part 115.41, 115.81, 115.241, 115, 381, and 115.341;
confidential pursuant to N.C.G.S. § 126-22; and constitute security
information or security or security risks deemed confidential pursuant to
N.C.G.S. § 132-1.7.” [Doc. 61 at 2].
Before sealing a court document, the Court must “(1) provide public
notice of the request to seal and allow interested parties a reasonable
opportunity to object, (2) consider less drastic alternatives to sealing the
documents, and (3) provide specific reasons and factual findings supporting
its decision to seal the documents and for rejecting the alternatives.”
Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000). In the present
case, the public has been provided with adequate notice and an opportunity
to object to the Defendant’s motion. Defendant filed his motion in July 2020,
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and it has been accessible through the Court’s electronic case filing system
since that time.
As to records at issue, the public’s right of access to such information
is substantially outweighed by the competing interest in protecting the details
of such information, particularly as defined in the provisions referenced by
Defendant. Having considered less drastic alternatives to sealing these
particular documents, the Court concludes that sealing these records is
necessary to protect the implicated privacy, security, and confidentiality
interests. As such, the Court with grant Defendant’s motion and order that
Exhibits A, B, C, and D to the Declaration of Eric Dye, filed at Docket Entries
61-1 through 61-4, remain under seal.
For all the foregoing reasons, Defendant McNemar’s motion for
summary judgment and motion to seal are granted.
IT IS, THEREFORE, ORDERED that Defendant McNemar’s Motion for
Summary Judgment [Doc. 58] is GRANTED.
IT IS FURTHER ORDERED that Defendant McNemar’s Motion to Seal
[Doc. 61] is GRANTED.
The Clerk is respectfully instructed to terminate this action.
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IT IS SO ORDERED.
Signed: February 18, 2021
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