Anderson-Bey v. Sgt. Graham

1

DARRELL TRISTAN ANDERSON-BEY, Plaintiff, v. SGT. GRAHAM, et al., Defendants.

No. 1:22cv798

United States District Court, M.D. North Carolina

May 30, 2024

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

L. PATRICK AULD, UNITED STATES MAGISTRATE JUDGE.

This case comes before the undersigned United States Magistrate Judge for a recommendation on “Defendants' Motion for Summary Judgment” (Docket Entry 13 (emphasis omitted))^[1] (the “Motion”). For the reasons that follow, the Court should grant the Motion.

BACKGROUND

Alleging violation of his rights under the Eighth Amendment of the United States Constitution and Article I, Section 27 of the North Carolina Constitution during his incarceration at Scotland Correctional Institution (at times, “Scotland CI”), Darrell Tristan Anderson-Bey (the “Plaintiff”) sued Sgt. Graham, Sgt. Tolbert Officer Osuna, Officer Veshinski,^[2] and Officer Watts (collectively the “Defendants”) pursuant to 42 U.S.C. § 1983.^[3] (See Docket Entry 2 (the “Complaint”) at 1-25.) According to Plaintiff's unverified Complaint (see id. at 10):

“All Defendants,” officers with the North Carolina Department of Public Safety (the “NCDPS”),^[4] “used [e]xcessive [f]orce against Plaintiff[] and sexually assaulted Plaintiff.” (Id. at 4.) In particular, at approximately 5:45 a.m. on June 5, 2022, “while Plaintiff was already restrained behind a Restrictive Housing cell door (cell A-10 of the Lower Red Unit/Solitary Confinement), Sgt. Antonio Tolbert . . . administered a burst of O.C. pepper spray into Plaintiff's facial area, through the wicket trap slot” (id. at 5), otherwise known as a handcuff pass (see id. at 5, 14), “during an ‘Anticipated Use of Force,' contrary to and in violation of [NCDPS] Policy and Procedures,” which mandate videorecording all anticipated uses of force and prohibit using force against, inter alia, an inmate “who is effectively restrained” or “as punishment” (id. at 14 (emphasis omitted)). “After being pepper sprayed and handcuffed, Plaintiff was escorted pass[ed] shower(s) . . . installed/designed to produce both[] cold and hot water[] and taken to a shower room located 100 yards away, within the Intake/Receiving Area, in violation of and contrary to [NCDPS policies,]” which specify that an inmate “subject[ed] to pepper spray will be given an ‘immediate opportunity' to flush his or her eyes with water once control has been restored.” (Id. at 14-15 (emphasis in original).)

The Intake/Receiving Area showers “only produce hot water,” in violation of NCDPS policy providing that “[t]he use of force as punishment is strictly prohibited” and in violation of the Eighth Amendment and Article 1, Section 27. (Id. at 15 (emphasis in original).) In addition, the Intake/Receiving Area shower room contains “a complete BLIND SPOT,” in violation of NCDPS policy prohibiting blind spots within the facility. (Id. (emphasis in original).) Once inside the shower room's blind spot, “Officer Osuna Officer Watts, Officer Veshinski, and Sgt. Graham all entered the shower room after [Plaintiff,] where cameras installed within the Intake/Receiving Area could not see them or [Plaintiff], and remained within the shower room with [Plaintiff] for approximately 2 or 3 minutes.” (Id. at 15-16.) Contrary to NCDPS policy that provides for handcuff passes in shower doors to facilitate the secure removal of handcuffs, Plaintiff's “[h]andcuffs were removed while the officers were within the shower room with [Plaintiff].” (Id. at 16; see also id. (“Officers failed to use the handcuff pass.”).) “As [Plaintiff] was facing the shower wall, within the shower room, the handcuffs w[ere] removed, and after [Plaintiff ha]d place[d his] hands (palms) on the shower wall, to show compliance, Officer Osuna beg[a]n to punch Plaintiff . . . on the back of the head area, [al]though Plaintiff had shown no signs of non-compliance, nor aggression, nor aggressiveness.” (Id.) “Driven by instinct, [Plaintiff] ducked and spun around, with attempts to defend [him]self, but Officer Watts and Officer Veshinski joined the attack/assault on [Plaintiff,] in violation of” NCDPS policy prohibiting the use of force as punishment. (Id. at 17.) “After Plaintiff was beaten to the floor, Sgt. Graham joined the assault, by striking Plaintiff several times on the right shin . . . with an un-extended baton, leaving swelling and a bleeding wound, in violation of” NCDPS policy, which prohibits the use of force against an inmate who has ceased “resistance or who is effectively restrained” and/or as punishment. (Id.) “Plaintiff's pants w[ere] then stripped off,” after which Officer Veshinski and Officer Osuna grabbed Plaintiff's genitals and, after mocking him, Sgt. Graham “struck Plaintiff across the right elbow with the un-extended baton, leaving swelling and a bleeding wound, after[ which Sgt. Graham] roar[ed] with laughter.” (Id. at 17-18.) This conduct violated NCDPS policies regarding the use of force. (See id.)

“After the above assault,” which lasted approximately two or three minutes, ended, Sgt. Graham “pulled his taser gun out and aimed it at Plaintiff's face[] as his subordinates exited the shower room. Then Sgt. Graham exited the shower room and the door was closed behind him before or after he'd reholstered the taser.” (Id. at 18.) This conduct violated NCDPS policy prohibiting officers from displaying a taser “when force is not otherwise authorized.” (Id.) “After the shower room door was closed, Plaintiff was ordered to hand his clothing to staff through the handcuff pass, on the shower room door, which procedures should ha[ve] been executed[] without staff entering the shower room (BLIND SPOT) first with [Plaintiff].” (Id. (emphasis in original).) In other words, “Plaintiff should have been placed inside the shower room by himself, the door then closed behind Plaintiff, and handcuffs removed through the handcuff pass, then clothing requested through [the] handcuff pass.” (Id. at 18-19; see also id. at 19 (“Staff never should have entered any ‘Blind Spot' with an [inmate]!”).)

“After handing Plaintiff's clothing through [the] handcuff pass, Plaintiff was ordered to decontaminate in the hot-torturing shower, which only provides hot water, in violation of” NCDPS policy prohibiting the use of force as punishment. (Id. at 19.) “After the hot-torturing shower, Plaintiff was given towel/boxers-shorts[ and] ordered to walk through [the] metal detector and ‘One Eyed Monster.'” (Id.) Sgt. Tolbert then took pictures of Plaintiff “for purposes of [the] Use of Force procedures.” (Id.)

“Plaintiff was then taken to medical, and as he'd begun to be assessed by Nurse Jernigan, the vital machine beg[a]n to beep repeatedly, refusing to record Plaintiff's vital signs.” (Id.) “Nurse Jernigan, who[] had walked away from Plaintiff[] towards [a] counter in Medical, then spun around, and for the first and only time, advised Plaintiff that if he did not remain perfectly still, the vital machine would not record Plaintiff's vital signs.” (Id. at 19-20.) “Sgt. Tolbert, desperate for an opportunity to conceal the negligent and [m]alicious [m]isconduct of fellow Sgt. Graham and subordinates, yelled, ‘Owp-Owp! He refused! Get his ass up and take him back to the unit!'” (Id. at 20 (stray hyphen omitted).) Plaintiff “quickly responded, ‘No, no! I didn't refuse anything! I want to be assessed and treated for my injuries!'” (Id.) “But Sgt. Tolbert insisted that [Plaintiff] had refused, due to the machine refus[ing] to record [his] vital signs.” (Id.)

“As Plaintiff was being escorted out of medical[] against his will, Sgt. Tolbert told Nurse Jernigan, ‘I'll be back to sign the refusal.'” (Id.) Moreover,

[alt]hough Sgt. Tolbert had reported the incident to Nurse Jernigan as a Use of Force, he'd only reported the part of the incident where he'd pepper sprayed Plaintiff, leaving out the part where his subordinates jumped Plaintiff in the BLIND SPOT of the shower room, as he stood at the counter within Intake/Receiving Area as [a l]ook-out.

(Id. (emphasis in original).)^[5] In contravention of NCDPS policy, Plaintiff was not “allowed to write a statement in relation to the [e]xcessive [u]se of [f]orce.” (Id.)

Subsequently:

Back on the unit, Plaintiff was placed into the holding cages . . . and when that current shift had retired[] at approximately 6:00 A.M. and Sgt. Hunt[] of the following shift had arrived, Plaintiff showed him the injuries[ he] sustained during the [e]xcessive [u]se of [f]orce committed by the [previous] shift and begged Sgt. Hunt to take him to medical.

This time at medical, Plaintiff was seen by a different nurse, who[] had witnessed the deprivation of Plaintiff's initial medical treatment attempts. This time, Plaintiff's wounds were treated with First Aid Antibiotic Ointment, as well as bandages, and X-rays w[ere] ordered for Plaintiff's injuries, which consisted of [] very sore ribs; fresh-bleeding wound, which w[as] swollen on the right shin (leg) area; fresh-bleeding wound, which w[as] swollen on the right elbow[]. Plaintiff still suffers [from] a knot on [his] rib cage, which is believe[d] to have come from the result of being stomped and kicked by correctional officers[] during the [e]xcessive [u]se of [f]orce.

Video footage of the Intake/Receiving Area on the 5th day of June, 2022, at approximately 5:45 A.M. will support the herein claims . . . .

(Id. at 21 (emphasis and internal quotation marks omitted).)

Following the close of discovery (see Text Order dated Mar 26, 2023 (establishing discovery deadline of November 27, 2023)), Defendants moved for summary judgment, arguing that “there exists no genuine issues of material fact which support Plaintiff's claims of alleged violations of his constitutional...