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Gordon v. Bartee

United States District Court, W.D. Virginia, Roanoke Division

March 30, 2019

CARL D. GORDON, Plaintiff,
BARTEE, et al., Defendants.



         Carl Gordon, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983.[1] The matter before the court is the defendants' motion for summary judgment.[2]I will grant in part and deny in part the motion for the reasons that follow.

         I. Background

         On 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.[3] 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.

         Gordon 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.

         Defendants 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 other issues.

         The 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.

         II. Claims

         Gordon 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.

         III. Standards of Review

         A. Summary Judgment

         Federal 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.

         The 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).

         B. Pro ...

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