United States District Court, W.D. Virginia, Roanoke Division
CARL D. GORDON, Plaintiff,
BARTEE, et al., Defendants.
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
Gordon, a Virginia inmate proceeding pro se, filed
this civil rights action pursuant to 42 U.S.C. §
1983. The matter before the court is the
defendants' motion for summary judgment.I will grant in
part and deny in part the motion for the reasons that follow.
November 10, 2015, Defendants Bartee and Carnes were
instructed to escort Gordon to the intake area at Wallens
Ridge State Prison so that he could be transported to Red
Onion State Prison. Bartee Aff. ¶ 4, dkt.
27-1. Bartee and Carnes arrived at Gordon's
cell and instructed Gordon to back up to the tray slot.
Bartee Aff. ¶ 4. Gordon complied and they handcuffed him
and placed leg restraints on him. Id. After that,
Bartee and Carnes assisted Gordon to his feet. Id.
Gordon then turned, sat down on the toilet, and refused to
leave his cell because he could not take a laundry bag of
legal materials with him. Id.
alleges, under penalty of perjury, that after a brief
discussion about the legal materials, Bartee responded,
“We don't care, ” and “grabbed and
jerked” Gordon, causing him to fall backwards and hit
his head on the toilet and the floor. Compl. 8 & 9. He
asserts that the waist-chain and handcuffs prevented him from
bracing himself, and after the fall Bartee and Carnes dragged
him out of the cell. Id. Gordon refused to get up
and continued to lay on the catwalk floor until Bartee and
Carnes called a lieutenant. The lieutenant assured Gordon
that his materials would follow him to the next institution,
and Gordon allowed Bartee and Carnes to escort him to the
intake area. Gordon states that he suffered a head injury
that caused wooziness, dizziness, blurred vision, and a
painfully throbbing head, at least in the immediate aftermath
of his alleged fall. Id. at 11. He
also states that he has continued to have periodic headaches,
dizziness, and blurred vision after the incident, especially
during exercise, at least in the days that followed the
alleged incident. Id. at 68.
contend that they did not use excessive force against Gordon,
they did not drag Gordon, and Gordon did not fall or hit his
head on the toilet. They have attached Gordon's medical
records, which reflects that (1) a nurse noted that Gordon
was in good health with no injury or distress when he arrived
at Red Onion on November 10, 2015; (2) the medical department
received request forms from Gordon dated November 10,
November 15, and December 3, 2015 for headaches and blurred
vision; (3) Gordon was scheduled for sick call and the nurse
evaluated Gordon and referred him to the doctor on November
16, 2015; (4) on November 16, 2015, the doctor gave Gordon
Tylenol and scheduled another appointment for the following
week; (5) on November 23, 2015, the doctor examined Gordon
for his complaints of headache and noted that Gordon
complained of a headache since falling on November 10, 2015;
and (6) the doctor ordered a skull x-ray and the results were
normal. Nurse B. Witt Aff. ¶¶ 4-6 & Enclosures
A & B, dkt. 27-4. The medical staff did not note any
defendants also proffered video evidence of the incident.
After restraining Gordon, the officers wait outside his cell
for thirty seconds. Exh. 5, D-3 Pod Back Video, at
7:23:33-7:24:00, dkt. 29. At that point one of the officers
then enters the cell and brings Gordon out. Id. at
7:24:00-7:24:05. The other officer stays just outside the
cell and assists the other officer once Gordon was brought to
the door threshold. Id. Bartee states that Carnes
took Gordon's right arm and supported his right shoulder
with the other hand while he, Bartee, was standing just
outside the cell door and reached into the cell to assist
with Gordon's left arm and left shoulder to bring him out
of the cell. Bartee Affidavit, ¶ 5, dkt. 27-1. Carnes
did not recall Gordon or any incident with him. Carnes
Affidavit ¶ 4, dkt. 27-3. Gordon claims that it was
Bartee who grabbed and jerked him, causing him to fall and
hit his head. Compl. 5.
asserts one claim: that Bartee and Carnes violated the Eighth
Amendment when they used excessive force in dragging him out
of his cell. He seeks a declaration that the defendants
violated his rights, damages, and associated court costs.
Standards of Review
Rule of Civil Procedure 56(a) provides that a court shall
grant summary judgment “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.” “As
to materiality, . . . [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The dispute over a material fact must be genuine,
“that is, the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Id. As such, the moving party is entitled to summary
judgment if the evidence supporting a genuine issue of
material fact “is merely colorable or is not
significantly probative.” Id. at 249-50.
moving party must initially demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). If the moving
party meets this burden, then the nonmoving party must set
forth specific facts to demonstrate a genuine issue of fact
for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). In considering a motion
for summary judgment, the court must view the record as a
whole and draw all reasonable inferences in the light most
favorable to the nonmoving party. Celotex, 477 U.S.
at 322-324; Shaw v. Stroud, 13 F.3d 791, 798 (4th
Cir. 1994). However, the nonmoving party may not rely on
beliefs or speculation to defeat a motion for summary
judgment. Baber v. Hosp. Corp. of Am., 977 F.2d 872,
874-75 (4th Cir. 1992).