govinfo:USCOURTS-ncwd-1_25-cv-00206-0

IN THE UNITED STATES DISTRICT COURT 
 FOR THE WESTERN DISTRICT OF NORTH CAROLINA 
ASHEVILLE DIVISION 
CIVIL CASE NO. 1:25-cv-00206-MR 
 
 
DAMON LAMARD PACE, ) 
) 
Plaintiff, ) 
) MEMORANDUM OF 
vs. ) DECISION AND ORDER 
) 
DILON BYRD, et al., ) 
) 
Defendants. ) 
_______________________________ ) 
 
THIS MATTER is before the Court on the Defendant’s Motion for 
Summary Judgment [Doc. 11]. 
I. BACKGROUND 
The Plaintiff Damon Lamard Price, proceeding pro se, filed this action 
pursuant to 42 U.S.C. § 1983 addressing incidents that allegedly occurred at 
the Polk County Detention Center (“PCDC”) while he was a pretrial 
detainee.1 The Plaintiff’s unverified Complaint passed initial review against 
Dilon Byrd, a correctional officer, for the use of excessive force and for 
 
1 The Plaintiff is currently an inmate of the State of North Carolina at the Albemarle 
Correctional Institution. 

2 
deliberate indifference to a serious medical need. [ Doc. 1: Compl.; Doc. 6: 
Order on Initial Rev.]. The Plaintiff seeks damages.2 [Doc. 1 at 5]. 
Presently pending is the Defendant’s Motion for Summary Judgment.3 
[Doc. 11]. Thereafter, the Court entered an Order in accordance with 
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising the Plaintiff of 
the requirements for filing a response to the summary judgment motion and 
of the manner in which evidence could be submitted to the Court. [Doc. 13: 
Roseboro Order]. The Plaintiff has not responded, and the time to do so has 
expired. These matters are ripe for disposition. 
II. STANDARD OF REVIEW 
 Summary judgment shall be granted “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.” Fed. R. Civ. P. 56(a). A factual dispute is 
genuine “if the evidence is such that a reasonable jury could return a verdict 
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 
 
2 The Plaintiff’s request for injunctive relief was mooted by Plaintiff’s transfer to state 
custody. [See Doc. 1 at 5; Doc. 6]; Incumaa v. Ozmint, 507 F.3d 281, 286 -87 (4th Cir. 
2007) (“the transfer of an inmate from a unit or location where he is subject to [a] 
challenged policy, practice, or condition, to a different unit or location where he is no 
longer subject to the challenged policy, practic e, or condition moots his claims for 
injunctive and declaratory relief.”). 
 
3 The Plaintiff’s Motion for Summary Judgment [Doc. 38: Plaintiff’s MSJ] was previously 
denied [Doc. 59: Order]. 

3 
(1986). A fact is material only if it might affect the outcome of the suit under 
governing law. Id. 
The movant has the “initial responsibility of informing the district court 
of the basis for its motion, and identifying those portions of the pleadings, 
depositions, answers to interrogatories, and admissions on file, together with 
the affidavits, if any, which it believes demonstrate the absence of a genuine 
issue of material fact.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) 
(internal citations omitted). 
Once this initial burden is met, the burden shifts to the nonmoving 
party. The nonmoving party “must set forth specific facts showing that there 
is a genuine issue for trial.” Id. at 322 n.3. The nonmoving party may not 
rely upon mere allegations or denials of allegations in his pleadings to defeat 
a motion for summary judgment. Id. at 324. Rather, the nonmoving party 
must oppose a proper summary judgment motion with citation to 
“depositions, documents, electronically stored information, affidavits or 
declarations, stipulations …, admissions, interrogatory answers, or other 
materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Namely, the 
nonmoving party must present sufficient evidence from which “a reasonable 
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 
248. To that end, only evidence admissible at trial may be considered by the 

4 
Court on summary judgment. Kennedy v. Joy Technologies, Inc. , 269 F. 
App’x 302, 308 (4th Cir. 2008) (citation omitted). 
When ruling on a summary judgment motion, a court must view the 
evidence and any inferences from the evidence in the light most favorable to 
the nonmoving party. Anderson, 477 U.S. at 255. Facts, however, “must be 
viewed in the light most favorable to the nonmoving party only if there is a 
‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 
S.Ct. 1769, 1776 (2007). As the Supreme Court has emphasized, 
“[w]hen the moving party has carried its burden under 
Rule 56(c), the opponent must do more than simply 
show there is some metaphysical doubt as to the 
material facts …. Where the record taken as a whole 
could not lead a rational trier of fact to find for the 
nonmoving party, there is no ‘genuine issue for trial.’” 
Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 
475 U.S. 574, 586 -87, 106 S. Ct. 1348 (1986) 
(footnote omitted). “[T]he mere existence of some 
alleged factual dispute between the parties will not 
defeat an otherwise properly supported motion for 
summary judgment; the requirement is that there be 
no g enuine issue of material fact.” Anderson v. 
Liberty Lobby, Inc., 477 U.S. 242, 247-28, 106 S. Ct. 
2505 (1986). When opposing parties tell two 
different stories, one of which is blatantly 
contradicted by the record, 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. 
 
Scott, 550 U.S. at 380. 
 

5 
III. FACTUAL BACKGROUND 
 The following is a summary of the relevant portions of the undisputed 
forecast of evidence.4 
 The Plaintiff was an inmate at the PCDC on February 18, 2023. [Doc. 
12-2: Byrd Decl. at ¶ 2]. The Plaintiff was placed in a suicide prevention cell 
that day due to mental health issues. [Id.]. For safety reasons, the only items 
allowed in a suicide prevention cell are a smock and a blanket. [Id.]. 
 The Plaintiff began urinating through a small opening at the bottom of 
the cell; a towel was placed under his doorway to prevent urine from flowing 
to the booking area. [id. at ¶ 3]. At approximately 8:19 a.m., Byrd noticed 
the Plaintiff pull the towel into his cell. [Id. at ¶ 4]. Byrd opened the food port 
and repeatedly instructed the Plaintiff to return the towel; the Plaintiff refused. 
[Id. at ¶ 5]. 
Byrd and Sergeant Cantrell5 opened the Plaintiff’s cell door. [Id. at ¶ 6]. 
Cantrell had his taser at the ready position in drive stun mode. [Id.]. Byrd 
successfully pulled the towel out of the cell despite the Plaintiff pulling it back. 
[Id.]. The Plaintiff then tried to force his way out of the cell. [Id. at ¶ 7]. Byrd 
 
4 The unverified Complaint cannot be considered on summary judgment as a forecast of 
evidence. Goodman v. Diggs, 986 F.3d 493, 498-99 (4th Cir. 2021) (a verified complaint 
is the equivalent of an opposing affidavit for summary judgment purposes). 
 
5 Sergeant Cantrell is not a defendant in this case. 

6 
drove the Plaintiff back , and the Plaintiff grabbed Byrd’s right arm. [Id.]. 
Cantrell then drive stunned the Plaintiff in the left buttocks area. [Id. at ¶ 7]. 
As Byrd and Cantrell attempted to place the Plaintiff back in the cell, 
the Plaintiff grabbed Byrd’s duty belt on the right side, where Byrd’s taser 
was located. [Id. at ¶ 8]. Byrd struck the Plaintiff’s face with his hand until 
the Plaintiff let go of the duty belt. [Id.]. The Plaintiff repeatedly tried to grab 
Byrd’s arms, and Cantrell drive stunned the Plaintiff with “minimal effect.” 
[Id.]. 
Cantrell instructed Byrd to use pepper spray. [Doc. 12-2: Byrd Decl. at 
¶ 9]. Byrd deployed his pepper spray into the Plaintiff’s face. [Id.]. The 
Plaintiff relented, and Byrd and Cantrell were able to push the Plaintiff back 
into the cell and close the door. [Id.]. 
After the Plaintiff calmed down, he was taken to the shower to 
decontaminate. [Id. at ¶ 10]. Byrd observed the Plaintiff during 
decontamination and he appeared to have no injuries. [Id.]. 
 PCDC Jail Administrator Mark Herman provided the Plaintiff’s inmate 
grievances between February 18, 2023 and March 16, 2026. [Doc. 12-3: 
Herman Decl. at ¶¶ 2 -3]. The first grievance within that time range was 
submitted on August 25, 2023 ; it does not address the incident at issue . 
[Doc. 12-5: MSJ Ex (Turnkey Corrections grievance printout)]. 

7 
IV. DISCUSSION 
A. Exhaustion 
The Prison Litigation Reform Act (PLRA) requires a prisoner to exhaust 
his administrative remedies before filing a § 1983 action. 42 U.S.C. § 
1997e(a). The PLRA provides, in pertinent part, that “[n]o action shall be 
brought with respect to prison condit ions under section 1983 of this title, or 
any other Federal law, by a prisoner confined in any jail, prison, or other 
correctional facility until such administrative remedies as are available are 
exhausted.” Id. In Porter v. Nussle, the Supreme Court held that the PLRA’s 
exhaustion requirement applies to all inmate suits about prison life. 534 U.S. 
516, 532 (2002). The Court ruled that “exhaustion in cases covered by § 
1997e(a) is now mandatory.” Id. at 524 (citation omitted). The Porter Court 
stressed that, under the PLRA, exhaustion must take place before the 
commencement of the civil action to further the efficient administration of 
justice. Id. 
In Woodford v. Ngo, the Supreme Court held that the PLRA exhaustion 
requirement requires “proper” exhaustion: “Administrative law ... requir[es] 
proper exhaustion of administrative remedies, which ‘means using all steps 
that the agency holds out, and doing so properly (so t hat the agency 
addresses the issues on the merits).’” 548 U.S. 81, 90 (2006) (quoting Pozo 

8 
v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Further, “[t]here is no 
question that exhaustion is mandatory under the PLRA and that 
unexhausted claims cannot be brought in court.” Jones v. Bock , 549 U.S. 
199, 211 (2007) (citing Porter, 534 U.S. at 524). 
A prison official has the burden to prove an inmate’s failure to exhaust 
available administrative remedies. Jones, 549 U.S. at 216. Once a 
defendant presents evidence of a failure to exhaust, the burden of proof 
shifts to the inmate to show, by a preponderance of the evidence, either that 
exhaustion occurred or that administrative remedies were unavailable. 
Graham v. Gentry, 413 F. App’x 660, 663 (4th Cir. 2011). 
The PCDC has a has established a three -step procedure governing 
inmate grievances. [See Doc. 12-4: MSJ Ex ( Polk County Sheriff’s Office/ 
PCDC Policies and Procedures, Chapter 700: Programs and Services)]. 
Except in circumstances not applicable here, inmates are required to file a 
grievance within 72 hours of the incident at issue. The shift supervisor then 
has five working days to respond, and the inmate has two working days to 
appeal. If an appeal is taken, a lieutenant investigates the grievance and 
submits a response within five working days; the inmate has two working 
days to appeal to the administrator . The administrator has seven working 

9 
days to respond. The administrator’s response is final and “and will 
constitute exhaustion of the inmate’s administrative remedies.” [Id. at 2, 9]. 
Here, the Defendant has presented a forecast of evidence that the 
Plaintiff filed no grievance s addressing the February 18, 2023 incident in 
compliance with PCDC policy. The Plaintiff has failed to demonstrate that 
he exhausted his claims or that administrative remedies were unavailable 
him to do so. Accordingly, the Court concludes that the Defendant is entitled 
to summary judgment on the grounds that the Plaintiff failed to exhaust his 
administrative remedies. 
B. Merits 
While the Court concludes that this action is subject to dismissal due 
to the Plaintiff’s failure to exhaust, the Court will nevertheless proceed to 
address the merits of the Plaintiff’s claims. 
1. Excessive Force 
The Fourteenth Amendment “protects a pretrial detainee from the use 
of excessive force that amounts to punishment.” Graham v. Connor , 490 
U.S. 386, 395 n.10 (1989). To prevail on an excessive force claim, a pretrial 
detainee must demonstrate only that the force “purposely or knowingly used 
against him was objectively unreasonable.” Kingsley v. Hendrickson , 576 
U.S. 389 (2015). The standard for assessing a pretrial detainee’s excessive 

10 
force claim is “solely an objective one.” Id. In determining whether the force 
was objectively unreasonable, a court considers the evidence “from the 
perspective of a reasonable officer on the scene, including what the officer 
knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham, 
490 U.S. at 396). A “bystander officer” can be liable for his or her 
nonfeasance if he or she: “(1) knows that a fellow officer is violating an 
individual’s constitutional rights; (2) has a reasonable opportunity to prevent 
the harm; and (3) chooses not to act.” Randall v. Prince George’s Cnty., 302 
F.3d 188, 204 (4th Cir. 2002). 
The Plaintiff has failed to demonstrate the existence of a genuine 
dispute of material fact as to the Defendant ’s use of excessive force. First, 
the forecast shows that there was a legitimate need for the application of 
force. The Plaintiff repeatedly refused direct orders to surrender a towel that 
was not allowed in his cell. It was objectively reasonable for the Defendant 
to open the cell and to retrieve the towel in light of safety considerations, to 
preserve order , and to compel the Plaintiff ’s compliance. See Scarbro v. 
New Hanover Cnty., 374 F.App’x 366, 370 (4th Cir. 2010) ( holding that the 
court “must accord due deference to an officer's efforts to restrain a detainee 
when faced with a dynamic and potentially violent situation; otherwise, ‘we 
would give encouragement to insubordination in an environment which is 

11 
already volatile enough’”) (quoting Grayson v. Peed, 195 F.3d 692, 697 (4th 
Cir. 1999), abrogated on other grounds by Short v. Hartman , 87 F.4th 593 
(4th Cir. 2023)). 
It was also objectively reasonable for Byrd to try pushing the Plaintiff 
back into the cell, and to strike the Plaintiff with his hand when the Plaintiff 
grabbed Byrd’s utility belt, near his taser. See, e.g., Hernandez v. Reynolds, 
No. 1:23 -cv-755, 2025 WL 1744291, at *4 (M.D.N.C. June 24, 2025) 
(concluding that defendants’ actions in applying two closed fist strikes to 
plaintiff’s head and taking plaintiff to the ground to restrain him were 
“necessary to [restore order and] maintain control ”). Similarly, it was 
objectively reasonable for Byrd to not intervene when Sergeant Cantrell 
deployed a taser in response to the Plaintiff trying to force his way out of the 
cell and grabbing Byrd. 
The relationship between the need and the amount of force that was 
used also weighs in favor of the Defendant. The undisputed forecast of 
evidence demonstrates that the Plaintiff refused several direct orders , and 
that his resistance escalated during the interaction. The Plaintiff’s escalating 
defiance left officers with no option other than to use increasing physical 
means to compel his compliance. See Grayson, 195 F.3d at 696 -97; see, 
e.g., Dale v. FNU Barnes, 1:23-cv-373, 2024 WL 4416440 (M.D.N.C. Oct. 4, 

12 
2024) (holding it was appropriate for an officer to use a baton to place the 
plaintiff in an arm lock after initial attempts to control the plaintiff with his 
hands failed). The undisputed forecast of evidence demonstrates that the 
Defendant used force only as necessary to gain control of the defiant Plaintiff 
and to restore order. 
In sum, no reasonable jury could conclude under these circumstances 
that the Plaintiff was subjected to excessive force by either officer . See 
Kingsley, 576 U.S. at 396 -96. The Defendant ’s Motion for Summary 
Judgment will, therefore, be granted on the Plaintiff’s excessive force claim. 
2. Deliberate Indifference to a Serious Medical Need 
A pretrial detainee’s claim based on deliberate indifference to a serious 
medical need is properly brought pursuant to the Fourteenth Amendment. 
Short v. Hartman , 87 F.4th 593, 611 (4th Cir. 2023). To prevail on such a 
claim, a plaintiff must demonstrate that: 
(1) they had a medical condition or injury that posed a substantial 
risk of serious harm; (2) the defendant intentionally, knowingly, 
or recklessly acted or failed to act to appropriately address the 
risk that the condition posed; (3) the defendant knew or should 
have known (a) that the detainee had the condition and (b) that 
the defendant's action or inaction posed an unjustifiably high risk 
of harm; and (4) as a result, the detainee was harmed. 
 
Id. at 611. Under this standard, “the plaintiff [need not] show that the 
defendant had actual knowledge of the detainee’s serious medical condition 

13 
and consciously disregarded the risk that their action or failure to act would 
result in harm.” Id. “[I]t is enough that the plaintiff show that the defendant 
acted or failed to act ‘in the face of an unjustifiably high risk of harm that is 
either known or so obvious that it should be known.’” Id. (quoting Farmer v. 
Brennan, 511 U.S. 825, 836 (1994)). Negligence or the accidental failure “to 
do right by the detainee,” however, are not sufficient. Id. at 611-12. 
 Here, t he undisputed forecast of evidence demonstrates that the 
Plaintiff was pepper sprayed in the face, that he was escorted to a 
decontamination shower when it was safe to do so, and that he did not 
appear to have any injuries. As such, there is no forecast of evidence that 
the Plaintiff had any serious medical need, that Defendant Byrd knew or 
should have known of such a need and disregarded the same, or that the 
Plaintiff was harmed in any way. The Defendant’s Motion for Summary 
Judgment will be granted with respect to the Plaintiff’s claim for deliberate 
indifference. 
3. Qualified Immunity 
“Qualified immunity protects officers who commit constitutional 
violations but who, in light of clearly established law, could reasonably 
believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 
(4th Cir. 2011) (en banc). “To determine whether an officer is entitled to 

14 
qualified immunity, the court must examine (1) whether the plaintiff has 
demonstrated that the officer violated a constitutional right and (2) whether 
that right was clearly established at the time of the alleged violation.” E.W. 
ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation 
marks omitted). The doctrine of qualified immunity “gives government 
officials breathing room to make reasonable but mistaken judgments and 
protects all but the plainly incompetent or those who knowingly violate the 
law.” Smith v. Ray , 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation 
marks omitted). 
Here, because the Plaintiff has not presented a forecast of evidence 
that the Defendant violated his constitutional rights, the Court concludes that 
the Defendant is entitled to qualified immunity. As such, summary judgment 
for the Defendant would also be proper on this ground.6 
IV. CONCLUSION 
For the reasons stated herein, the Defendant’s Motion for Summary 
Judgment is granted , and this action is dismissed . While dismissals for 
failure to exhaust administrative remedies are generally without prejudice , 
 
6 Even though Sgt. Cantrell is not a defendant, an examination of the record and the 
forecast of evidence shows that no claim against Cantrell, if there were one, would survive 
summary judgment for the same reasons as stated herein regarding Defendant Byrd. 
See, Nichols v. Bumgarner, ____ F.4th ____, 2026 WL 1084251 (4th Cir. Apr. 22, 2026). 

15 
the dismissal in this case will be with prejudice as the Court has concluded 
that there is no genuine dispute of material fact regarding the merit of the 
Plaintiff’s § 1983 claims. 
ORDER 
IT IS, THEREFORE, ORDERED that the Defendant’s Motion for 
Summary Judgment [Doc. 11] is GRANTED, and this action is DISMISSED 
WITH PREJUDICE. 
The Clerk is respectfully instructed to enter a Clerk’s Judgment in favor 
of the Defendant and to close this case. 
 IT IS SO ORDERED. 
 
 
 
 
 
 
 
Signed: June 9, 2026 

Passage view · GavelSight