Hurt v. All Corrections Officer and Staff employed by North Branch C.I.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

RAY HURT,

Plaintiff,

v. Civil Action No.: SAG-21-456

ALL CORRECTIONS OFFICERS

AND STAFF EMPLOYED BY

NORTH BRANCH CORR. INST.,

Defendants.

MEMORANDUM

The above-entitled complaint was received by the court on February 22, 2021, along with

plaintiff’s motions for leave to proceed in forma pauperis and to appoint counsel. ECF 2 and 3.

Because he appears indigent, plaintiff’s motion for leave to proceed in forma pauperis shall be

granted. The complaint must be dismissed for failure to state a claim and therefore plaintiff’s

motion to appoint counsel shall be denied.

Plaintiff, who is incarcerated at North Branch Correctional Institution (“NBCI”), alleges

that all of the correctional officers at NBCI “have discovered a method to watch him all day long

as he sits alone in his cell, and to flush toilets in the cells surrounding his own in [a] manner to

coincide with plaintiff’s actions while in his cell.” ECF 1 at 2. He asserts that this “treatment is

not plaintiff’s sentence consists of” and that “if true that plaintiff is monitored via satellite”

criminal charges are warranted. Id. As relief for an alleged violation of his Fourth and Eighth

Amendment rights, plaintiff seeks five-million dollars in damages. Id. at 3.

This Court is obliged by 28 U.S.C. § 1915A to screen prisoner complaints and dismiss any

complaint that is “frivolous, malicious or fails to state a claim upon which relief may be granted,

or seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

In deciding whether a complaint is frivolous, “[t]he district court need not look beyond the

complaint's allegations . . . . It must, however, hold the pro se complaint to less stringent standards

than pleadings drafted by attorneys and must read the complaint liberally.” See White v. White,

886 F.2d 721, 722-23 (4th Cir. 1989). Additionally, under the provisions of 28 U.S.C. § 1915(e)(2)

a case shall be dismissed at any time if the court determines that (A) the allegation of poverty is

untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which

relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such

relief.

Even liberally construed, the instant complaint does not state a claim upon which relief

may be granted. The facts alleged must be enough to raise a right to relief above the speculative

level and require “more than labels and conclusions,” as “‘courts are not bound to accept as true a

legal conclusion couched as a factual allegation.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007). The complaint must contain “enough facts to state a claim to relief that is plausible

on its face.” Id. at 569.

The allegations contained in this complaint appear to be the product of delusional or

disordered thought processes which may not be addressed in a judicial forum. A complaint that is

totally implausible or frivolous, such as this, may be dismissed sua sponte for lack of subject matter

jurisdiction pursuant to Fed R. Civ. P 12 (b)(1). See Apple v. Glenn, 183 F.3d 477 (6th Cir. 1999);

O’Connor v. United States, 159 F.R.D. 22 (D. Md. 1994); see also Crowley Cutlery Co. v. United

States, 849 F.2d 273, 277 (7th Cir. 1988)(federal district judge has authority to dismiss a frivolous

suit on his own initiative). Pertinent to the court’s consideration here, plaintiff is incarcerated and

any alleged constant surveillance, via satellite or otherwise, is a required element of his

imprisonment. Absent from the allegations raised is any conduct, policy, or actions that would

lead any reasonable person to believe that plaintiff has suffered a violation of his constitutional

rights.

When a complaint filed by a prisoner is dismissed in its entirety because it is frivolous,

malicious or fails to state a claim it qualifies as a “strike” under the provisions of 28 U.S.C.

§ 1915(g). See Blakely v. Wards, 738 F.3d 607, 610 (4th Cir. 2013) (dismissal of complaint on

grounds enumerated in § 1915(g), and not procedural posture at dismissal, determines whether the

dismissal qualifies as a strike). More recently, the Supreme Court held that dismissal with or

without prejudice for any of the grounds enumerated in § 1915(g) constitutes a “strike” under the

Act. Lomax v. Ortiz-Marquez, _U.S._, 140 S.Ct. 1721, 1724 (2020). Because this complaint is

dismissed for failure to state a claim, the dismissal constitutes a strike. Plaintiff is reminded that

under 28 U.S.C. § 1915(g) he will not be granted in forma pauperis status if he has “on three or

more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in

a court of the United States that was dismissed on the grounds that it . . . fails to state a claim upon

which relief may be granted, unless” he can establish he “is under imminent danger of serious

physical injury.”

A separate order dismissing the complaint and issuing a strike follows.

March 2, 2021 _________/s/____________________

Date Stephanie A. Gallagher

United States District Judge