Brandon Otha Martin v. Author Shepard, Durham Police Department

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRANDON OTHA MARTIN, ) ) Plaintiff, ) ) v. ) 1:25CV152 ) AUTHOR SHEPARD, YATES, ) DURHAM POLICE DEPARTMENT, ) ) Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Brandon Othar Martin alleges that he Martin’s injury report concluded that was a pre-trial detainee at the he “could have only gotten [the Durham County Jail in early puncture wounds] from an outside December 2023 when members of the entity” because he “did not have such Durham Police Department used injuries upon being admitted into excessive force when interrogating custody 2 weeks prior.” Id. him. See generally Am. Compl., Docket Entry 4. Martin alleges that Yates is responsible for those injuries because This matter is now before the Court on Yates deployed his taser when he and Martin’s Motion for Summary an unknown officer interrogated Judgment. Docket Entry 24. For the Martin on December 4. Martin also reasons set forth below, the Court alleges a similar incident on should deny Martin’s motion. December 5 when Author Shepard, Yates, and an unknown Fire Marshal I. FACTS interrogated him and Shepard slapped him and grabbed his injured It is undisputed that Martin was in arm. Accordingly, he brought this suit custody at the Durham County Jail in pursuant to 42 U.S.C. § 1983 for early December 2023. On December excessive force, civil conspiracy, and 4, he sustained two puncture wounds supervisor liability. He also asserts to his upper left arm for which he North Carolina state law claims of sought and received medical common law negligence, negligent treatment. See Suppl. 1, Docket Entry infliction of emotional distress, and 30. The Jail Chief who investigated intentional infliction of emotional dispute of material fact by distress.1 “identifying those portions of ‘the pleadings, depositions, answers to Long before discovery closed, Martin interrogatories, and admissions on moved for summary judgment and file, together with the affidavits, if any’ filed various documents, including which [he] believes demonstrates the briefs and supplements, in support of absence of a genuine issue of material his motion. See Mot. for Summ. J., fact.” Celotex Corp. v. Catrett, 477 Docket Entry 24; Suppl., Docket U.S. 317, 323 (1986) (quoting Rule Entries 30, 34, 35, 37; Br., Docket 56); see also Fed. R. Civ. P. Entry 42; Reply Br., Docket Entry 31.2 56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely disputed II. STANDARD OF must support the assertion by[] citing REVIEW to . . . materials in the record, including depositions, documents, A court “shall grant summary electronically stored information, judgment if the movant shows that affidavits or declarations, stipulations there is no genuine dispute as to any . . . , admissions, interrogatory material fact and the movant is answers, or other materials . . . .”). entitled to judgment as a matter of And, if a verified complaint is based law.” Fed. R. Civ. P. 56(a). A genuine on the plaintiff’s personal knowledge, dispute of material fact exists “if the it can serve as the equivalent of an evidence is such that a reasonable jury affidavit for purposes of summary could return a verdict for the judgment. See Goodman v. Diggs, nonmoving party.” Anderson v. 986 F.3d 493, 498 (4th Cir. 2021) Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In analyzing a summary judgment motion, courts “must construe all facts and reasonable inferences in the light most favorable to the nonmoving party.” Bandy v. City of Salem, 59 F.4th 705, 709 (4th Cir. 2023). The moving party bears the burden of establishing the absence of a genuine

1 Martin includes a claim for what looks meant to assert such a claim. His other like from his handwriting as claims are illegible. See Am. Compl. “unintentional infliction of emotional § II.B. distress.” In addition to analyzing a 2 Although these documents were mailed claim for negligent infliction of and docketed over time, the Court emotional distress, the Court also interpreted the filings to be support for analyzes a claim for intentional infliction Martin’s motion and considered them as of emotional distress in case Martin such. (citing Williams v. Griffin, 952 F.2d him was objectively unreasonable.’” 820, 823 (4th Cir. 1991)). Simmons v. Whitaker, 106 F.4th 379, 387 (4th Cir. 2024) (quoting III. ANALYSIS Kingsley, 576 U.S. at 396-97).

A. The Court should deny “[O]bjective reasonableness turns on the motion as to the the ‘facts and circumstances of each § 1983 claims. particular case.’” Kingsley, 576 U.S. at 397 (quoting Graham, 490 U.S. at Title 42, United States Code, Section 396). “A court must make this 1983 “is a federal statutory remedy determination from the perspective of available to those deprived of rights a reasonable officer on the scene, secured to them by the Constitution including what the officer knew at the and, in a more sharply limited way, time . . . .” Id. (citing Graham, 490 the statutory laws of the United U.S. at 396). States” by persons acting under color of state law. Philips v. Pitt Cty. Mem’l In so doing, the court “must also Hosp., 572 F.3d 176, 180 (4th Cir. account for the ‘legitimate interests 2009). A plaintiff bringing suit that stem from [the government’s] pursuant to Section 1983 must show need to manage the facility in which that a person acting under color of the individual is detained,’ state law violated a Constitutional or appropriately deferring to ‘policies other federal legal right. West v. and practices that in th[e] judgment’ Atkins, 487 U.S. 42, 48 (1988). of jail officials ‘are needed to preserve internal order and discipline and to Here, the Constitutional right at issue maintain institutional security.’” Id. is the right to be free from an officer’s (quoting Bell v. Wolfish, 441 U.S. 520, use of excessive force, a right provided 540, 547 (1979)). to a pre-trial detainee in the Due Process Clause of the Fourteenth As the Kingsley Court acknowledged, Amendment. Kingsley v. “[r]unning a prison is an inordinately Hendrickson, 576 U.S. 389, 400 difficult undertaking,” where “safety (2015); Graham v. Connor, 490 U.S. and order . . . requires the expertise of 386, 395 n.10 (1989). “‘[T]he Due correctional officials, who must have Process Clause protects a pretrial substantial discretion to devise detainee from the use of excessive reasonable solutions to the problems force that amounts to punishment.’” they face.” Id. at 399 (internal Id. at 397-98 (quoting Graham, 490 quotations omitted). “Officers facing U.S. at 395 n.10). disturbances ‘are often forced to make split-second judgments – in To succeed on a claim of excessive circumstances that are tense, force as a pre-trial detainee, the plaintiff must show that “‘the force purposely or knowingly used against uncertain, and rapidly evolving.’” Id. jointly in concert and [(2)] that some (quoting Graham, 490 U.S. at 397). overt act was done in furtherance of the conspiracy which [(3)] resulted in Thus, “a court must judge the [the plaintiff’s] deprivation of a reasonableness of the force used from constitutional right[.]’” O.W. v. Carr, the perspective and with the 172 F.4th 337, 355 (4th Cir. 2026) knowledge of the defendant officer.” (quoting Hinkle v. City of Clarksburg, Id. And, in so doing, a court must 81 F.3d 416, 421 (4th Cir. 1996)) review the force used in “full context” (alterations in O.W.). The evidence to avoid “miss[ing] the forest for the “‘must, at least, reasonably lead to the trees.” Smith v. Ray, 781 F.3d 95, 101 inference that [the defendants] (4th Cir. 2015). positively or tacitly came to a mutual understanding to try to accomplish a The United States Supreme Court common and unlawful plan.’” Id. recently reiterated that “‘the totality (quoting Hinkle, 81 F.3d at 421). of circumstances’ inquiry into a use of “‘This is a weighty burden.’” Id. force has no time limit.” Barnes v. (quoting Hinkle, 81 F.3d at 421). Felix, 605 U.S. 73, 80 (2025). While “the situation at the precise time of Here, as the party moving for the [use of force] will often be what summary judgment on his § 1983 matters most, . . . earlier facts and claims, Martin bears the burden of circumstances may bear on how a establishing the absence of a genuine reasonable officer would have dispute of material fact. And he understood and responded to later cannot do so by relying on statements ones.” Id. in a brief to support a motion for summary judgment, because they are To determine the reasonableness of not evidence. See Hill v. Carvana, an officer’s actions, courts assess “the LLC, No. 22-CV-37, 2022 WL relationship between the need for the 1625020, at *3 (M.D.N.C. May 23, use of force and the amount of force 2022) (citing cases); City of used; the extent of the plaintiff’s Greensboro v. Guilford Cnty. Bd. of injury; any effort made by the officer Elections, No. 15-CV-559, 2017 WL to temper or to limit the amount of 11488724, at *1 n.4 (M.D.N.C. Jan. 26, force; the severity of the security 2017) (collecting cases). Likewise, he problem at issue; the threat cannot rest upon his unverified reasonably perceived by the officer; complaint. Martin must identify and whether the plaintiff was actively portions of the pleadings, discovery resisting,” among other responses, deposition testimony, and circumstances. Kingsley, 576 U.S. at affidavits (if any) that support his 397 (citing Graham, 490 U.S. at 396). position. He failed to do so. To prove a civil conspiracy claim Specifically, very few of Martin’s under § 1983, a plaintiff must show submissions constitute evidence “‘that the [defendants (1)] acted properly before the Court on a summary judgment motion. And Most importantly, they do not change none of that evidence shows, as a the analysis. matter of law, that the defendants violated Martin’s constitutional The undisputed evidence from these rights. materials shows that Martin suffered injuries to his arm from a taser on Accordingly, when the defendants December 4, 2023, sought and responded to Martin’s motion, they received treatment at health services, argued that the “motion is not and reported the alleged incident to supported with any competent health services and Internal Affairs. evidence.” See Defs.’ Resp. in Opp’n to In the Detainee Injury Report, the Pl.’s Summ. J. Mot. ¶ 1, Docket Entry investigating officer reported Martin’s 29; see also id. ¶ 4 (noting there is no two puncture wounds from a taser in evidence in the record). his upper left arm and concluded that he “could have only gotten them from Martin replied and filed several an outside entity” (an entity other supplements. His reply brief presents than the Sherrif’s Office) because he the same allegations as those in his “did not have such injuries upon being complaint. See Mem. of Law, Docket admitted into custody 2 weeks prior.” Entry 31. The various supplements include a December 4, 2023 injury But there is no record evidence of the report, two health services reports, circumstances according to how two letters from Martin to Internal Martin received his injuries. In other Affairs, statements other detainees words, there is no evidence before the wrote, and additional arguments. See Court of what actions, if any, Shepard Docket Entries 30, 34, 35, 37, & 43. or Yates took relative to this injury, The court should “generally should and there is no evidence of the alleged not consider ‘new evidence’ presented December 5 incident. This lack of by a summary judgment movant in its evidence is determinative to all of reply brief to which the non-movant Martin’s claims. The only detainee has had no opportunity to respond. statement that was made under But evidence attached to a reply brief penalty of perjury, see Hamilton v. is not ‘new’ if it responds to issues and Mayor & City Council of Baltimore, facts raised in the non-movant[’]s 807 F. Supp. 2d 331, 352-53 (D. Md. opposition brief.” Kurland v. ACE 2011) (recognizing that a statement Am. Ins. Co., No. CV JKB-15-2668, made under penalty of perjury, even if 2017 WL 354254, at *4 (D. Md. Jan. unsworn, substantially complies with 23, 2017) (internal citations omitted). 28 U.S.C. § 1746 and citing cases stating the same), provides no Here, the defendants do not argue evidence of the December 4 or 5 that the Court cannot consider the incidents and, instead, describes supplemental materials, and they do track the allegations in the complaint. general observations of police officers 2026) (quoting Shaw v. Stroud, 13 at the jail. F.3d 791, 798-99 (4th Cir. 1994)). To determine if a supervisor is liable, Not only does Martin fail to provide courts “must consider whether the competent evidence in support of his supervisor’s own ‘deliberate excessive force claim, but there is indifference permitted the accordingly no evidence of a constitutional abuses to continue conspiracy to violate his unchecked.’” Id. (quoting Slakan v. constitutional rights. Porter, 737 F.2d 368, 373 (4th Cir. 1984)). Martin also alleges supervisory liability pursuant to § 1983. It is To prove a supervisor’s liability under unclear if he brings this claim against § 1983, a plaintiff must show Shepard, Yates, or the Durham Police Department, or a combination of (1) that the supervisor had these defendants. To the extent actual or constructive Martin contends Durham Police knowledge that his Department is the liable supervisor, it subordinate was engaged in lacks the capacity to be sued. See conduct that posed a Cates v. Sandoval, No. 1:20cv20, pervasive and unreasonable 2020 WL 5665537, at *7 (M.D.N.C. risk of constitutional injury Sept. 23, 2020) (dismissing the claims to citizens like the plaintiff; against the Durham Police Department because, under North (2) that the supervisor’s Carolina law, it lacks the capacity to response to that knowledge be sued) (citing cases). was so inadequate as to show deliberate indifference There is no supervisory liability under to or tacit authorization of § 1983 because liability stems from an the alleged offensive intentional act. A supervisor can only practices; and be liable under § 1983 for “their personal wrongdoing or supervisory (3) that there was an affirmative actions that violated constitutional causal link between the norms.” Timpson ex rel. Timpson v. supervisor’s inaction and Anderson Cnty. Disabilities & Special the particular constitutional Needs Bd., 31 F.4th 238, 257 (4th Cir. injury suffered by the 2022) (emphasis added). The plaintiff. supervisor’s “‘indifference or tacit authorization’” of “a constitutional Shaw, 13 F.3d at 799 (internal violation committed by a subordinate quotations omitted). state or local government official” must be “‘a causative factor’ in Here, this claim fails at the start enabling the violation.” Bolick v. because, as explained above, there is Anderson, 169 F.4th 528, 541 (4th Cir. no evidence from which to conclude, as a matter of law, that anyone Shepard or both owed Martin a legal violated Martin’s constitutional rights duty, there is no evidence, as such that a supervisor could have explained above, from which the been deliberately indifferent to the Court could conclude as a matter of violation. law that either of them caused Martin’s alleged injuries. In sum, Martin has not shown, as a matter of law, that Shepard, Yates, or Therefore, the Court should deny the Durham Police Department Martin’s motion for summary violated his constitutional rights. judgment on his common law negligence claim. Therefore, the Court should deny Martin’s motion for summary A claim of negligent infliction of judgment as to his § 1983 claims. emotional distress under North Carolina law requires evidence that B. The Court should deny “the defendant negligently engaged in the motion as to the state conduct, it was reasonably claims. foreseeable that such conduct would cause the plaintiff severe emotional A plaintiff alleging common law distress[,] . . . and the conduct did in negligence under North Carolina law fact cause the plaintiff severe “‘must establish that the defendant emotional distress.” McClean, 376 F. owed the plaintiff a duty, that the Supp. 3d at 616 (cleaned up). defendant breached that duty, and Evidence of “severe emotional that the plaintiff’s injury was distress” includes a “severe and proximately caused by the breach.’” disabling emotional or mental City of High Point v. Suez Treatment condition which may be generally Sols., Inc., 485 F. Supp. 3d 608, 620 recognized and diagnosed by (M.D.N.C. 2020) (quoting Martishius professionals trained to do so” such as v. Carolco Studios, Inc., 562 s.E.2d “neurosis, psychosis, chronic 887, 892 (N.C. 2002)). “Intentional depression, [and] phobia.” Johnson v. acts cannot form the basis for a Ruark Obstetrics & Gynecology negligence claim.” McClean v. Duke Assocs., P.A., 395 S.E.2d 85, 97 (N.C. Univ., 376 F. Supp. 3d 585, 617 1990) As with common law (M.D.N.C. 2019) (citing Brewer v. negligence, intentional conduct Harris, 182 S.E.2d 345, 350 (N.C. cannot support this claim. See 1971); Givens v. Sellars, 159 S.E.2d McClean, 376 F. Supp. 3d at 616. 530, 535 (N.C. Ct. App. 1968)). For the same reasons that Martin’s Here, as an initial matter, Martin motion fails as to his common law alleges that Shepard and Yates acted negligence claim, so, too, does the intentionally on December 4 and 5. motion fail on the negligent infliction Furthermore, assuming arguendo for of emotional distress claim. In purposes of this motion that Yates or addition, there is no evidence to determine as a matter of law that emotional distress” has the same Martin suffered severe emotional meaning as it does in a negligent distress because of any negligent infliction of emotional distress claim. conduct. See McClean, 376 F. Supp. 3d at 611. Thus, the Court should deny Martin’s As with Martin’s other claims, the motion for summary judgment on his evidence before the Court does not negligent infliction of emotional permit a determination as a matter of distress claim. law that Shepard’s or Yates’s conduct was extreme and outrageous. There is Finally, to prove intentional infliction also no evidence to conclude as a of emotional distress under North matter of law that Martin suffered Carolina law, a plaintiff must show severe emotional distress because of “extreme and outrageous conduct by any such conduct. the defendant which is intended to and does in fact cause severe Therefore, the Court should deny his emotional distress.” Jd. at 611 motion for summary judgment on the (cleaned up). “Extreme and intentional infliction of emotional outrageous conduct” is conduct that is distress claim. “so outrageous in character, and so extreme in degree, as to go beyond all IV. CONCLUSION

. way ws that the Court DENY Brandon Otha intolerable in a civilized community. Martin’s Motion for Summa Briggs v. Rosenthal, 327 S.E.2d 308, Jud ty 311 (N.C. Ct. App. 1985) (quoting udgment. Restatement § 46, cmt d). “Severe

J fe Gibson McFadden United States Magistrate Judge Date: July 13, 2026