This case is not covered by Casetext's citator
No. 5:15-CT-03193-D (E.D.N.C. Jul. 23, 2018)

No. 5:15-CT-03193-D


James C. McNeill, Plaintiff, v. Lieutenant Norris, et al., Defendants.

Order& Memorandum & Recommendation

Plaintiff James C. McNeill, a state inmate proceeding pro se, alleges that the Defendants violated his rights under the Eighth Amendment to the Constitution by using excessive force against him and by being deliberately indifferent to his serious medical needs. This matter is currently before the court upon the motion for summary judgment filed by Defendant Carnessha Sheppard (D.E. 55) and the motion for summary judgment filed by Defendants Nurse Collins, Correctional Officer Nichols, and Lieutenant Norris (D.E. 61). Also before the court are McNeill's motions for default judgment (D.E. 79, 81). For the following reasons, McNeill's motions for default judgment are denied. And the undersigned recommends that the district court grant Defendants' motions for summary judgment.

McNeill incorrectly identified Sheppard in the Complaint as "Camessha Shepard." Sheppard is a registered nurse, who works for a private nursing company that contracts to provide nursing staff for the North Carolina Department of Public Safety ("DPS"). Sheppard Aff. (D.E. 57-1) ¶¶ 2, 4. During the time relevant to McNeill's Complaint she worked at Central Prison. Id.

Collins is a registered nurse who worked for DPS at Central Prison during the time relevant to McNeill's complaint. Collins Aff. (D.E. 62-1) ¶ 3.

Nichols is a Correctional Sergeant who worked for DPS at Central Prison during the time relevant to McNeill's complaint. Nichols Aff. (D.E. 62-2) ¶ 3.

Norris worked for DPS as the manager of McNeill's housing unit during the time relevant to McNeill's complaint. Norris Aff. (D.E. 62-4) ¶ 3.

I. Procedural Background

After McNeill filed his Complaint, the court conducted a frivolity review and dismissed McNeill's claims against several defendants while allowing his excessive force claim against Norris and Nichols and his deliberate indifference claim against Sheppard and Collins to proceed. D.E. 15. Thereafter, McNeill filed motions seeking a preliminary injunction and appointment of counsel. D.E. 48, 49. The court denied these motions. D.E. 67, 71.

Sheppard moved for summary judgment in October 2017 (D.E. 55), and the remaining defendants moved for summary judgment in December 2017 (D.E. 61). In support of their motion for summary judgment, Nichols, Norris, and Collins sought leave to manually file four video exhibits. D.E. 65. The court granted their request, instructed the Defendants to provide McNeill and Sheppard with copies of the video footage; and told them to ensure that McNeill had an opportunity to view the footage. (D.E. 67). In several subsequent filings, including his response to the summary judgment motions, McNeill argued that defendants had violated this directive (D.E. 72. 73, 79, 80, 81). Because of this failure, McNeill sought entry of default against defendants (D.E. 79, 81). On May 19, 2018, defendants notified the court that they had corrected this mistake and that McNeill had viewed the video footage (D.E. 82).

II. Factual Background

During the time relevant to his Complaint, DPS held McNeill at Central Prison as a "safekeeper" while he was awaiting trial in Cumberland County. Sheppard Aff. (D.E. 57-1) ¶ 10. On June 17, 2013, as several safekeeper inmates returned from lunch, two correctional officers observed McNeill and Willie Brown, another inmate, fighting in the hallway. Nichols Aff. (D.E. 62-2) ¶ 6; Norris Aff. (D.E. 62-4) ¶ 10. The officers radioed for assistance and ordered McNeill and Brown to stop fighting. Def. Ex. A (D.E. 62-3) p. 1; Norris Aff. (D.E. 62-4) ¶¶ 10-11. Lieutenant Michelle Hartley arrived to assist and also ordered McNeill and Brown to stop fighting. Norris Aff. (D.E. 62-4) ¶¶ 10-11; Def. Ex. A (D.E. 62-3) p. 1. When they disregarded this order, Hartley sprayed a short burst of pepper spray into McNeill's and Brown's faces. Id. This ended the altercation between the inmates. Id. Correctional officers then handcuffed McNeill. Id.

The North Carolina Department of Public Safety, Policy & Procedure Manual for Prisons, Chapter C, Section .1600 defines a "Safekeeper" as:

A prisoner held in any county jail who: poses a serious escape risk; exhibits violently aggressive behavior that cannot be contained and warrants a higher level of supervision; needs to be protected from other inmates and the county jail facility cannot provide such protection; is a female or a person 18 years of age or younger and the county jail facility does not have adequate housing for such prisoners; is in custody at a time when a fire or other catastrophic event has caused the county jail facility to cease or curtail operations; otherwise poses an imminent danger to the staff of the county jail facility or to other prisoners in the facility or to other prisoners in the facility; or requires medical or mental health treatment.

Sheppard Aff. (D.E. 57-1) n. 2.

Norris arrived after McNeill had been pepper sprayed and handcuffed. Norris Aff. (D.E. 62-4) ¶ 11. Norris and correctional officer Andrew Bixler began escorting McNeill to the nurse's station. Id. ¶¶ 11-13. Surveillance cameras recorded McNeill's trip to the medical unit. Norris Aff. (D.E. 62-4) ¶¶ 16-23.

During the trip to the nursing station, McNeill resisted by "talking loud and dragging his feet." Def. Ex. A (D.E. 62-3) p. 1; Norris Aff. (D.E. 62-4) ¶¶ 13-15. According to Norris, McNeill was still "clearly agitated and disruptive." Norris Aff. (D.E. 62-4) ¶ 13. Likewise, Norris also believed McNeill tried to trip him. Id. ¶ 18. In response, Norris applied a bent wrist-technique to McNeill's arm. Id. Following the application of this technique, McNeill stopped resisting. Id. ¶ 15. Norris estimates that the entire trip to the nursing station took just over one minute. Norris Aff. (D.E. 62-4) ¶ 16. Norris did not use the bent-wrist technique for the entire duration of the trip; he stopped applying it once he had McNeill under control. Id. ¶ 23. Norris claims that he did not knee or otherwise assault McNeill as he escorted him. Id. ¶¶ 24-25.

Norris describes the technique he used on McNeill: "During the application of the bent-wrist technique, I am controlling Plaintiff's right elbow with my right hand and am applying top-hand control with my left hand to Plaintiff's right hand. Top-hand control entails applying pressure to the wrist to induce discomfort to ensure compliance and discourage resistance." Norris Aff. (D.E.62-4) ¶ 14.

Nichols was not involved in breaking up the fight or escorting McNeill to the nurse's station afterwards. Nichols Aff. (D.E. 62-2) ¶¶ 8-10; Norris Aff. (D.E. 62-4) ¶¶ 29-30.

Sheppard treated McNeill's injuries after the June 17, 2013 incident, which included lacerations and abrasions to his left pinkie, torso, and right forearm. Sheppard Aff. (D.E. 57-1) ¶¶ 14-15. During the examination, McNeill said that Brown injured him with a shank. Id. ¶ 16. Sheppard cleaned McNeill's wounds with saline and applied ointment. Id. ¶ 15. She also wrapped McNeill's right pinkie finger with gauze and secured it with medical tape. Id. While he received this treatment, McNeill did not make any suggestion that officers injured him during his trip to the nurse's station. Id. ¶ 17.

Sheppard again treated McNeill on June 18, 2013. Id. ¶ 18. During this examination, McNeill did not mention or otherwise seek treatment for his injured finger. Id. ¶ 19. Between June 19, 2013, and July 11, 2013, McNeill submitted many sick call appointment requests. Id. ¶ 20. Several, but not all, of these referred to his left ring finger. Id. For example, on June 24, 2013, McNeill complained that "the ligaments in [his] left ring finger [were] torn." Collins Aff. (D.E. 62-1) ¶ 15.

Sheppard examined McNeill after he complained about his finger injury. Id. Specifically, she noted that McNeill could make a fist but grimaced when she touched his finger. Id. Sheppard then paged a nurse practitioner, who ordered an x-ray of McNeill's left ring finger. Id. A few weeks later, McNeill stated that his left ring finger still hurt and he complained about the lack of treatment for his finger. Id. ¶ 16. A medical practitioner examined his left ring finger the next day, and ordered another x-ray. Id. ¶ 17

As registered nurses, neither Sheppard nor Collins could order X-rays or refer McNeill to a specialist. Sheppard. Aff. (D.E. 57-1) ¶ 7; Collins Aff. (D.E. 62-1) ¶ 9. --------

A doctor examined McNeill on August 1, 2013, when he returned to Central Prison after court proceedings. Id. ¶ 19. During this examination, the doctor noted that McNeill's left ring finger was swollen. Id. McNeill claimed that the injury happened after an officer twisted his finger. Id. After this examination, the doctor referred McNeill to an orthopedic specialist. Id.

Two days later, providers at Central Prison Urgent Care examined McNeill. Id. ¶ 20. During this examination, the provider noted that McNeill's left ring finger had capillary refill in less than two seconds with dry and warm skin with good turgor. Id. Providers prescribed pain medication for him and sent him back to his housing unit. Id.

An orthopedic specialist examined McNeill on September 16, 2013. Id. ¶ 22. After the examination, the specialist opined that McNeill did not need any specific restrictions or any additional treatment. Id.

McNeill had several x-rays of his left ring finger. Sheppard Aff. (D.E. 57-1) ¶¶ 21-22, 27; Collins Aff. (D.E. 62-1) ¶ 23; Def. Ex. 14 (D.E. 57-1) p. 100. These x-rays revealed no evidence of fracture or dislocation. Id. Similarly, McNeill was involved in another altercation in early November 2013, which resulted in his hands being photographed. Sheppard Aff. (D.E. 57-1) ¶¶ 33-34. The photograph does not show any injury or deformity of McNeill's left ring finger. Id.

III. Discussion

A. Motions for Default Judgment

On January 25, 2018, the undersigned entered an order, memorandum, and recommendation ("O&M&R"), which, among other things, granted a motion for leave to manually file video surveillance footage of the June 17, 2013 incident. Order at 4, D.E. 67. In doing so, the court directed the North Carolina Attorney General to provide McNeill and Sheppard with copies of that video footage, and to ensure that McNeill had an opportunity to view it. Id. Because of a series of miscommunications and misunderstandings on the part of both McNeill and the State of North Carolina, McNeill could not view the footage until May 1, 2018. Def's Resp. at 2-3 (D.E. 78); Def. Ex. B (D.E. 82-2).

McNeill has filed two motions seeking the entry of default against the Defendants because of these delays. The court has reviewed the arguments of the parties and finds that there is no basis to enter default against the Defendants for the delay in viewing the video. McNeill's motions for default judgment (D.E. 79, 81) is denied.

B. Motions for Summary Judgment

Summary judgment is appropriate when an examination of the pleadings, affidavits, and other proper discovery materials before the court shows that "there is no genuine dispute as to any material fact," thus entitling the moving party to judgment as a matter of law. Fed. R. Civ. P. 56(a); see Tolan v. Cotton, ___ U.S. ___, 134 S. Ct. 1861, 1866 (2014). In making this determination, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); accord Tolan, 134 S. Ct. at 1866.

The movant carries the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a factual dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant discharges this burden by identifying "an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. In response, the non-movant must identify specific facts showing there is a genuine issue for trial. Id. at 323. In so doing, the non-movant may rely on a verified complaint when allegations in the document are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Conclusory allegations and speculation do not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). If the non-movant fails to introduce evidence contradicting a fact supported by the movant's evidence, the court may "consider the fact undisputed for summary judgment purposes." Fed. R. Civ. P. 56(e)(2). If the non-movant fails to meet his burden, summary judgment must be granted. Celotex, 477 U.S. at 322.

1. Excessive Force

McNeill claims that Nichols and Norris violated his rights by using excessive force against him as they escorted him to a medical examination following the June 17, 2013 altercation. Specifically, McNeill contends Norris grabbed his arm and twisted it while shoving him forward. Compl. 5. McNeill also asserts that Norris "continued twisting" McNeill's right arm and forearm, also "bending [his] wrist and fingers." Id. Then, Nichols joined Norris from the left side "bending [McNeill's] fingers and shoving [him] forcefully, squeezing and twisting [his] arm." Id. McNeill also contends that Norris "kneed [him] in the back twice" and threatened to break McNeill's wrist. Id. Defendants argue that the force used to transport McNeill to the nurse's station was appropriate because of his resistance. See Def. Mem. Supp. Mot. Summ. J. at 17-18, D.E. 63.

The Eighth Amendment to the Constitution, made applicable to the states through the Fourteenth Amendment, Robinson v. California, 370 U.S. 660 (1962), 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). The Supreme Court has interpreted this language to prohibit correctional officers from using "excessive physical force against prisoners." Farmer v. Brennan, 511 U.S. 825, 832 (1994). A prison official violates this provision when he "maliciously and sadistically use[s] force to cause harm . . . ." Hudson v. McMillian, 503 U.S. 1, 9 (1992).

To establish an Eighth Amendment claim, an inmate must satisfy both an objective component-that the harm inflicted was serious enough-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 U.S. at 320-21. Although the court may consider the lack of serious injury, 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, 37-38 (2010).

Applying these factors to the evidence in this case requires the court to grant summary judgment in the Defendants' favor as to McNeill's excessive force claim.

McNeill's claims against Nichols should be dismissed because McNeill has failed to establish that Nichols participated in the alleged use of force. See, e.g. Nichols Aff. (D.E. 62-2) ¶¶ 8-10; Norris Aff. (D.E. 62-4) ¶¶ 29-30.

Defendants also have established that the need for force was necessary. As officers escorted him to the nurses' station, McNeill was visibly agitated and disruptive. Norris Aff. (D.E. 62-4) ¶ 13. He resisted efforts to escort him by dragging his feet and possibly trying to trip Norris. Id. ¶ 15. There is no evidence that the use of force extended beyond what was necessary to secure McNeill, or that the officers continued to use force after they McNeill complied with their instructions. Id. ¶¶ 17-22.

Likewise, medical examinations failed to show that McNeill suffered any significant injuries as a result of Norris's application of the bent-wrist technique. See, e.g., Sheppard Aff. (D.E. 57-1) ¶¶ 14-17. While the extent of the injuries suffered by a plaintiff is not determinative, see Gevara v. Hubbard, No. 1:09CV681, 2014 WL 2881611, at * 3 (M.D.N.C. June 25, 2014), "[t]he extent of injury may also provide some indication of the amount of force applied." Wilkins, 559 U.S. at 37. McNeill's injuries are inconsistent with the force he contends defendants applied.

In short, McNeill failed to rebut Defendants' evidence that he resisted officers during his escort and that the officers used reasonable force to get McNeill to comply. On the contrary, the video evidence submitted establishes that the force the officers used was reasonable. Although the court may not "reject a plaintiff's account on summary judgment" if the video evidence merely "offers some support for a governmental officer's version of events," "when a video 'quite clearly contradicts the version of the story told by [the plaintiff] . . . 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.'" Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011) (alteration in original) (quoting and citing Scott v. Harris, 550 U.S. 372, 380 (2007)). After reviewing the video, the court finds that plaintiff's "version of events is so utterly discredited by the record that no reasonable jury could have believed him." Scott, 550 U.S. at 379-80.

Thus, under the circumstances of this case, Defendants' actions did not violate the Eighth Amendment. See Lloyd v. MacNeish, No. 5:12-CT-3163-FL, 2015 WL 1391476, at *12-13 (E.D.N.C. Mar. 25, 2015) (holding that where plaintiff's disruptive behavior required the use of force to prevent a security risk, and plaintiff was adequately warned, an abrasion to plaintiff's arm when the food tray slot was closed failed to show that officers used force maliciously and sadistically, but "that the use of force was implemented in a good faith effort to restore discipline in response to intentionally disruptive behavior."); see also, Jackson v. Hart, No. 5:13-CT-3202-D, 2015 WL 6873596, at * 6 (E.D.N.C. Nov. 9, 2015) (finding that if defendant applied force, "he did so in a good-faith effort to maintain or restore discipline, not maliciously or sadistically for the purpose of causing harm.").

Finally, McNeill also asserts that Norris was verbally abusive and threating during the June 17, 2013 escort. Mere words alone, however offensive, do not amount to an assault or state a constitutionally significant claim. See Wilson v. McKeller, 254 F. App'x 960, 961 (4th Cir. 2007) (per curiam) ("mere threats or verbal abuse, without more, do not state a cognizable claim under § 1983."); Carter v. Morris, 164 F.3d 215, 219 n.3 (4th Cir. 1999).

In sum, McNeill has failed to establish that the Defendants violated his Eighth Amendment rights when they escorted him to the nurse's station on June 17, 2013, and the undersigned recommends that the court grant the Defendants' motions for summary judgment on McNeill's excessive force claim.

2. Deliberate Indifference

McNeill contends that, after the June 17, 2013 incident, he "was repeatedly denied the necessary medical attention and treatment for injuries sustained from excessive use of force that included left ring finger whose ligaments were torn so badly I considered it broken." Compl. at 9, D.E. 1. Defendants assert that the documentary evidence rebutts McNeill's allegations that he did not receive medical treatment for his left ring finger injury. See, e.g., Def. Mem. Supp. Mot. Summ. J. at 27, D.E. 63.

The Eighth Amendment's prohibition against cruel and unusual punishment protects prisoners from the "unnecessary and wanton infliction of pain," which includes "deliberate indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks and citation omitted). To prevail on an Eighth Amendment claim, "a prisoner must prove two elements: (1) that objectively the deprivation of a basic human need was sufficiently serious, and (2) that subjectively the prison officials acted with a sufficiently culpable state of mind." Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (internal quotation marks and citations omitted). The first element "is satisfied by a serious medical condition," while the second element "is satisfied by showing deliberate indifference by prison officials." Id. "Deliberate indifference" requires that the prison official(s) knew of and ignored the inmate's serious medical needs. Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001) (citing White ex rel. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997) ("A claim of deliberate indifference ... implies at a minimum that defendants were plainly placed on notice of a danger and chose to ignore the danger notwithstanding the notice.")). Negligent or incorrect medical treatment does not violate the Eighth Amendment, nor does medical malpractice. Estelle v. Gamble, 429 U.S. at 106 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."). In fact, negligence, in general, is not actionable under 42 U.S.C. § 1983; see Daniels v. Williams, 474 U.S. 327, 328-36 & n. 3 (1986); Davidson v. Cannon, 474 U.S. 344, 345-48 (1986); Pink v. Lester, 52 F.3d 73 (4th Cir. 1995) ("The district court properly held that Daniels bars an action under § 1983 for negligent conduct[.]").

McNeill alleges that Sheppard and Collins failed to treat his allegedly injured left ring finger on June 17, 2013, and continued to ignore the alleged injury. Compl. at 10, D.E. 1. But the evidence shows that neither Defendant was deliberately indifferent to McNeill's serious medical needs. Sheppard treated McNeill for his June 17, 2013 injuries that same day. Sheppard Aff. (D.E. 57-1). Later on, both Sheppard and Collins, and many other DPS medical care providers, responded to several sick call requests filed by McNeill. Sheppard Aff. (D.E. 57-1); Collins Aff. (D.E. 62-1) ¶ 23. His medical records show that McNeill often received medical care while at Central Prison. Id. This included x-rays of his left ring finger and referrals to an orthopedic specialist. Id. ¶ 27. The specialist ultimately determined McNeill's finger did not require any further treatment. Id.

Moreover, while at Central Prison, McNeill had regular access to medical care through Sick Call Appointment Requests. In addition to the complaints about his left ring finger, McNeill submitted dozens of sick call requests for several complaints. Id. ¶¶ 11, 19, 20, 30; Collins Aff. (D.E. 62-1) ¶¶ 24-25. Prison officials promptly assessed McNeill's condition when he submitted a sick call request. Id. In general, prison officials responded to McNeill's sick call requests by: (1) referring him to other medical professionals who could address his concerns; (2) noting that McNeill's sick call requests had already been addressed; or (3) providing and explaining a course of treatment. Sheppard Aff. (D.E. 57-1) ¶ 31; Def. Ex. (D.E. 57-1) pp. 15-239; Collins Aff. (D.E. 62-1) ¶¶ 25-26. Several of McNeill's sick call appointment requests acknowledge he is receiving medical care, and simply express a disagreement with the treatment. See, e.g., Def. Ex. 14 (D.E. 14), p. 110 (listing painkillers prescribed to plaintiff); p. 112 (acknowledging that an orthopedic specialist examined his left ring finger); p. 117 (same).

In sum, McNeill has not rebutted the evidence on record that he received medical treatment for the injury to his left ring finger. McNeill has thus failed to establish that the defendants violated his Eighth Amendment rights by failing to treat the injury he sustained to his left ring finger on June 17, 2013, and the undersigned recommends that the court grant the defendants' Motions for Summary Judgment on McNeill's deliberate indifference claim.

IV. Conclusion

For the aforementioned reasons, McNeill's motions for default judgment (D.E. 79, 81) are DENIED.

In addition, the undersigned recommends that defendants' motion for summary judgment (D.E. 55, 61) be ALLOWED. The court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on plaintiff. Plaintiff shall have until 14 days after service of the Memorandum and Recommendation on plainitff to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.

If plaintiff does not file written objections to the Memorandum and Recommendation by the foregoing deadline, plaintiff will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, plaintiff's failure to file written objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: July 23, 2018


Robert T. Numbers, II

United States Magistrate Judge