JOHNSON v. SMITH

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KENNETH JOHNSON, )

)

Plaintiff, )

)

v. ) 1:19cv834

)

MR. SMITH, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on the “Motion by Defendants

Boggs, Pearman, and Taylor to Dismiss Plaintiff’s Complaint with

Prejudice (Docket Entry 24) (the “First Dismissal Motion”), and

“Motion by Defendant [] Smith to Dismiss Plaintiff’s Complaint with

Prejudice (Docket Entry 30) (the “Second Dismissal Motion”).

Plaintiff filed no response to either Motion. (See Docket Entries

dated Dec. 3, 2019, to present.)1 For the reasons that follow, the

1 By local rule, “[i]f a respondent fails to file a response

within the time required . . ., the motion will be considered and

decided as an uncontested motion, and ordinarily will be granted

without further notice.” M.D.N.C. LR 7.3(k). Further, “[w]hen a

defendant’s motion to dismiss a complaint states specific

deficiencies that warrant dismissal, and presents supporting legal

arguments, it is the plaintiff’s obligation to respond

substantively to address them. Failure to respond to the

defendant’s arguments constitutes abandonment of those claims. Any

abandoned claims are subject to dismissal with prejudice.”

Kitchings v. Shelton, Case No. 17-882, 2018 WL 398285, at *6 (D.

Md. Jan. 12, 2018) (unpublished) (internal citations omitted).

However, the United States Court of Appeals for the Fourth Circuit

requires substantive review of even unopposed motions to dismiss.

Court should grant the First Dismissal Motion and should grant in

part and deny in part the Second Dismissal Motion.

BACKGROUND

This case began when Plaintiff, a pretrial detainee at the

time of Defendants’ alleged actions (see Docket Entry 26, WII 2-3),

filed a pro se Complaint alleging deprivations of his

constitutional rights under 42 U.S.C. § 1983 (see Docket Entry 2).

The Complaint asserts that Defendants violated Plaintiff’s “8

Amendment right against cruel [and] unusual punishment” (id. at 6),

and his “5‘" Amendment [right to] due process” (id.), through their

use of excessive force and subsequent actions (see id. at 6-9).°

The Complaint names eight Defendants (see id. at 1-5), to include

“Sgt. Taylor” (“Defendant Taylor’), “Sgt. Pearman” (“Defendant

Pearman”), “Sgt. Boggs” (“Defendant Boggs”), and “Mr. Smith”

(“Defendant Smith”) (id. at 1; see also id. at 4-5).° It further

alleges that, in “approximately July[ or] August 2018” (id. at 6),

at the “Guilford County Jail” (id.), a physical altercation

See Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 416 n.3

(4th Cir. 2014) (“Even though [the plaintiffs] did not challenge

the motions to dismiss, we note that the district court

nevertheless has an obligation to review the motions to ensure that

dismissal is proper.”).

* Citations to Docket Entry pages utilize the CM/ECF footer’s

pagination.

> In quoting Plaintiff’s filings, this Recommendation applies

standard capitalization conventions for ease of reading.

-2-

transpired between Plaintiff and multiple “D-Tac officers,”

including some Defendants (see id. at 6-9).4

According to the Complaint, in “Aug[ust 2018] . . . [at] 7:00

pm [j]ust before shift change” (id. at 7), Plaintiff “was walking

to [his] room” (id.), when “D-tac officers needlessly and without

provocation assaulted [him] while responding to [Defendant] Taylor

being assaulted by another inmate” (id. at 6). More specifically,

the Complaint asserts that,

as the officers came in the block[,] they [saw Plaintiff]

and . . . [after] hear[ing ] a code on [the] radio[, ]

they beat [Plaintiff] on the floor[. ] CO called out

[that there was] still a fight in the room[,] then they

final[l]y got [Plaintiff] in handcuffs . . . [and]

smashed [his] head against the door[. Plaintiff] tr[i]ed

to go[] to [the] hospital[,] but they denied [Plaintiff]

that.

(Id. at 7.) As a result, the Complaint asserts that Plaintiff

suffered “bruising to [his] face,” and that his “left cheek bone

sits higher than the other[, his] eye brow was busted[, his] nose

was bleeding[,] and they chip[p]ed [two] of [his] teeth.” (Id. at

8.) The Complaint further alleges that, after this incident,

“[Defendant] Pearman and [Defendant] Boggs denied [Plaintiff’s

]rights for a gr[ie]vance form” (id. at 6), and “[Defendant] Taylor

4 Both the First and Second Dismissal Motion “presum[e that]

Plaintiff’s repeated use of the term “D-Tac[,”] refers to the

[Guilford County] Sheriff[ Department]’s ‘Detention Tactical Team’

at [Guilford County] Jail Central.” (Docket Entry 25 at 2 n.2;

accord Docket Entry 32 at 2 n.2.)

-3-

. . . denied [Plaintiff] the opportunity to file a grievance” (id.

at 9).

Based on those allegations, the Complaint asserts claims

against Defendants Taylor and Smith in their individual and

official capacities (see id. at 4-5); however, it fails to state in

which capacities it asserts claims against Defendants Boggs and

Pearman (see id. at 1-11). Finally, the Complaint requests

“monetary relief in the form of $100,000.00 compensa[tory damages

and] $100,000.00 punitive [damages].” (Id. at 9.)

Defendants Boggs, Pearman, and Taylor filed the First

Dismissal Motion pursuant to Federal Rule of Civil Procedure

12 (b) (6), because (i) Plaintiff fails to state a valid claim under

both the Fifth and Highth Amendment (Docket Entry 25 at 5), (11)

“Plaintiff fails to state a claim against Defendants in their

individual capacities” (id.), (iii) “Plaintiff fails to state a

claim against the moving Defendants in their official capacities”

(id. at 7), (iv) “Defendants are entitled to public official’s

immunity” (id. at 9), and (v) “Defendants are entitled to

governmental immunity” (id. at 11).° Defendant Smith filed the

° Defendants raised public official’s immunity and

governmental immunity in the event the Court found that the

Complaint alleged any state law claims. (See Docket Entry 25 at 9-

11; accord Docket Entry 32 at 9-11). After careful review, the

undersigned does not find that the Complaint asserts any state law

claims (see generally Docket Entry 2), and, as such, finds public

official’s immunity and governmental immunity inapplicable in this

matter.

-4-

Second Dismissal Motion pursuant to Federal Rule of Civil Procedure

12(b)(6) and made nearly identical arguments. (See Docket Entry 32

at 1-13.)

Following the filing of both the First Dismissal Motion and

the Second Dismissal Motion, the Clerk sent Plaintiff a letter

advising him of his “right to file a 20-page response in opposition

. . . . within 21 days from the date of service of the [Defendants’

M]otion [to Dismiss] upon [him].” (Docket Entry 27 at 1; accord

Docket Entry 33 at 1.) These letters specifically cautioned

Plaintiff that a “failure to respond . . . within the allowed time

may cause the [C]ourt to conclude that [Defendants’] contentions

are undisputed and/or that [Plaintiff] no longer wish[es] to pursue

the matter,” as well as that, “unless [Plaintiff] file[s] a

response in opposition to [Defendants’ M]otion [to Dismiss], it is

likely [his] case will be dismissed.” (Docket Entry 27 at 1;

accord Docket Entry 33 at 1.) Despite these warnings, Plaintiff

did not respond to either Dismissal Motion. (See Docket Entries

dated Dec. 4, 2019, to present.) Later, the Clerk sent Plaintiff

an additional letter advising him that “[n]o response ha[d] been

filed to the Defendants [Boggs, Pearman, and Taylor]’s motion to

dismiss filed December 3, 2019, and Defendant [] Smith’s motion to

dismiss filed December 20, 2019,” and warned Plaintiff that “the[]

motions [would] be referred to the Court . . . for consideration,

without a hearing, on the unopposed motion[s].” (Docket Entry 34

-5-

at 1.) That letter further advised that, “[i]f the motion[s were]

opposed and excusable neglect c[ould] be shown for having failed to

respond, [the Clerk would] submit the explanation and proposed

response to the Court.” (Id.) Plaintiff still did not act. (See

Docket Entries dated Jan. 21, 2020, to present.)

DISCUSSION

I. Motion to Dismiss Standards

A Rule 12 (b) (6) motion “tests the sufficiency of a complaint,”

but “does not resolve contests surrounding the facts, the merits of

a claim, or the applicability of defenses.” Republican Party of

N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Accordingly, in

reviewing a motion to dismiss, the Court must “accept the facts

alleged in the complaint as true and construe them in the light

most favorable to the plaintiff.” Coleman v. Maryland Ct. of App.,

626 F.3d 187, 189 (4th Cir. 2010), aff’d sub nom., Coleman v. Court

of App. of Md., 566 U.S. 30 (2012). The Court must also “draw all

reasonable inferences in favor of the plaintiff.” E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (Ath Cir.

2011) (internal quotation marks omitted). Moreover, a pro se

complaint must “be liberally construed” and “held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted);

but see Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir.

2008) (explaining that the Fourth Circuit has “not read Erickson to

-~6-

undermine [the] requirement that a pleading contain more than

labels and conclusions” (internal quotation marks omitted)).

To avoid Rule 12(b)(6) dismissal, a complaint must contain

sufficient factual allegations “to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). To qualify as plausible, a claim needs sufficient factual

content to support a reasonable inference of the defendant’s

liability for the alleged misconduct. See id. (citing Twombly,

550 U.S. at 556). The complaint need not contain detailed factual

recitations, but must provide “the defendant fair notice of what

the claim is and the grounds upon which it rests.” Twombly, 550

U.S. at 555 (internal quotation marks and ellipsis omitted). “At

bottom, determining whether a complaint states . . . a plausible

claim for relief . . . will ‘be a context-specific task that

requires the reviewing court to draw on its judicial experience and

common sense.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.

2009) (quoting Iqbal, 556 U.S. at 679).

II. Official Capacity Claims

With respect to local government officials, official capacity

liability attaches under Section 1983 only if “execution of a

government’s policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent official

policy, inflicts the injury.” Collins v. City of Harker Heights,

-7-

Tex., 503 U.S. 115, 121 (1992) (internal quotation marks omitted).

Notably, an official’s discretionary acts, exercised in carrying

out official duties, do not necessarily represent official policy.

See Gantt v. Whitaker, 203 F. Supp. 2d 503, 509 (M.D.N.C. 2002).

“Rather, the official must have ‘final authority’ over government

policy with respect to the action in question” to trigger official

capacity liability. Id. (quoting Pembaur v. Cincinnati, 475 U.S.

469, 481-82 (1986)).

Here, the Complaint asserts that Plaintiff suffered injury

from the actions of “D-tac officers,” as well as the actions (or

inactions) of Defendants Boggs, Pearman, and Taylor, but does not

include any allegations showing that any Defendant acted pursuant

to any official policy or custom of the Guilford County Detention

Center. (See generally Docket Entry 2.) Nor does the Complaint

allege that any Defendant possesses “final authority” over any such

policy that contributed to Plaintiff’s alleged injuries. (See id.)

Given that Plaintiff proceeds as a pauper (see Docket Entry 5),

“the [C]ourt shall dismiss the case at any time if the [C]ourt

determines . . . the action . . . fails to state a claim upon which

relief may be granted,” 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff

has not stated a claim against any named Defendant in their

official capacity, and the Court should thus dismiss with prejudice

that aspect of Plaintiff’s claim(s).

-8-

Ill. Individual Capacity Claims

A. Fifth and Eighth Amendment Claims

As an initial matter, the Complaint argues that Defendants

violated Plaintiff’s 5‘ Amendment rights. (See Docket Entry 2 at

6). However, both the Complaint and Dismissal Motions identify all

Defendants as local government officials. (See id. at 3-7); see

also Docket Entry 25 at 1 (identifying Defendants Taylor, Pearman,

and Boggs as employees of the Guilford County Sheriff’s Office);

Docket Entry 32 at 1 (identifying Defendant Smith as an employee of

the Guilford County Sheriff’s Office).) Therefore, Plaintiff’s

medical care and grievance-related claims do not fall under the

Fifth Amendment. See Tate v. Smith, No. 1:14cv1l25, 2017 WL

1843269, at *9 (M.D.N.C. May 5, 2017) (unpublished) (finding that,

“the Fourteenth Amendment rather than the Fifth Amendment governs

the conduct of state officials”) (citing Dusenbery v. United

States, 534 U.S. 161, 167 (2002)).

Next, the Complaint identifies Plaintiff as a “[c]onvicted and

sentenced state prisoner” (Docket Entry 2 at 3) and argues that

Defendants violated Plaintiff’s 8" Amendment rights (see id. at 6).

By contrast, both the First and Second Dismissal Motion contend

that “Plaintiff was a pre-trial detainee [and] not a post-trial

convict during the relevant time period referenced [in the]

Complaint” (Docket Entry 25 at 5 (parenthesis omitted); accord

Docket Entry 32 at 5), and further argue that, because of

□□□

Plaintiff’s status as a pretrial detainee during July and August

2018, the time of the alleged incident (see id.), his claims fall

under the Due Process Clause of the Fourteenth Amendment, rather

than under the Eighth Amendment. See Kingsley v. Hendrickson,

U.S. , 135 S. Ct. 2466, 2475 (2015). However, “[t]he due

process rights of a pretrial detainee are at least as great as the

[E]ighth [A]mendment protections available to the convicted

prisoner,” Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988),

and, as discussed below, the Complaint has properly stated a claim

against Defendant Smith that can proceed under either the Eighth or

the Fourteenth Amendment.

B. Defendants Pearman, Boggs, and Taylor

The Complaint’s core allegations concern “D-tac officers” (see

Docket Entry 2 at 6-9), but, as Defendants Pearman, Boggs, and

Taylor correctly contend, the Complaint “does not identify . . .

Defendants Pearman, Boggs, or Taylor as D-Tac team members . . .

[and] allege[s neither] that [Defendants] Pearman, Boggs, or Taylor

participated in the assault on [] Plaintiff[] nor that they denied

[him] access to medical care” (Docket Entry 25 at 6). Instead, the

Complaint’s sole allegation against Defendants Pearman, Boggs, and

Taylor focuses upon Plaintiff’s access to grievance procedures, in

that “[Defendant] Pearman and [Defendant] Boggs denied [Plaintiff’s

r]ights for a gr[ie]vance form” (Docket Entry 2 at 6), and

-10-

“[Defendant] Taylor . . . denied [Plaintiff] the opportunity to

file a grievance” (id. at 9).

The Fourth Circuit, however, has held that “inmates do not

have a constitutionally protected right to a grievance procedure,

and no liability exists under [Section] 1983 for a prison

administrator’s response to a grievance or appeal.” Brown v.

Virginia Beach Sheriff’s Office, No. 1:17cv48, 2017 WL 6402987, at

*3 (E.D. Va. Mar. 28, 2017) (unpublished) (citing Adams v. Rice, 40

F.2d 72, 75 (4th Cir. 1994)), aff’d in relevant part, 697 F. App’x

161, 162 (4th Cir. 2017) (“[The plaintiff] contended that [the

defendant] refused to accept a grievance . . . . [T]his claim

concerns access to grievance procedures which . . . is not

constitutionally protected.”). As a result, Plaintiff’s individual

capacity claims alleged against Defendants Pearman, Boggs, and

Taylor fail as a matter of law.

C. Defendant Smith

As Defendant Smith has observed, on its face, the Complaint

“does not list [him] . . . in [its] caption[,] . . . does not

allege that [he] took any action[,] . . . does not identify the D-

Tac officers involved in the alleged assault . . . [and neither]

allege[s that] Defendant [] Smith participated in the assault on []

Plaintiff[] nor that he denied Plaintiff access to medical care.”

(Docket Entry 32 at 5-6.) Nonetheless, the Complaint identifies

Defendant Smith as a “D-Tac officer” (Docket Entry 2 at 4), and

-11-

alleges that “D-tac officers needlessly and without provocation

assaulted [Plaintiff]” (id. at 6). More specifically, the

Complaint alleges that they “beat [him] on the floor . . . [and]

smashed [his] head against the door . . . [and, upon Plaintiff’s

attempt to] go[] to [the] hospital[,] . . . denied [him] that.”

(Id. at 7.) Granting Plaintiff the benefit of liberal

construction, the Court should conclude that the Complaint

identifies Defendant Smith as one of the D-tac officers who

assaulted and/or denied medical care to Plaintiff.

The Due Process clause of the Fourteenth Amendment protects

pretrial detainees from an officer’s use of excessive force. See

Kingsley, U.S. at , 135 S. Ct. at 2475. In Kingsley, the

Supreme Court observed that “pretrial detainees (unlike convicted

prisoners) cannot be punished at all.” Id. Accordingly, a

pretrial detainee can “prevail [on an excessive force claim] by

showing that the [defendant’s] actions are not ‘rationally related

to a legitimate nonpunitive governmental purpose’ or that the

actions ‘appear excessive in relation to that purpose.’” Id.,

U.S. at , 135 S. Ct. at 2473 (quoting Bell v. Wolfish, 441 U.S.

520, 561 (1979)). Ultimately, a standard of objective

reasonableness applies to a pretrial detainee’s excessive force

claim. Id., U.S. at , 135 S. Ct. at 2472-73. Further, the

Fourth Circuit “ha[s] held that a pretrial detainee makes out a due

process violation if he shows ‘deliberate indifference to serious

-12-

medical needs’ .... This is so . . . because no legitimate

nonpunitive goal is served by a denial or unreasonable delay in

providing medical treatment where the need for such treatment is

apparent.” Martin, 849 F.2d at 871 (quoting Estelle v. Gamble, 429

U.S. 97, 104-06 (1976)) (some internal citations omitted).

Additionally, in the context of prison inmates,

the Eighth Amendment forbids ‘the unnecessary and wanton

infliction of pain.’ Whitley v. Albers, 475 U.S. 312,

319[ ] (1986). . . . ‘When prison officials maliciously

and sadistically use force to cause harm, contemporary

standards of decency always are violated.’ Hudson v.

McMillian, 503 U.S. 1, 9[ ] (1992). .. . ‘This is true

whether or not significant injury is evident. Otherwise,

the Eighth Amendment would permit any physical

punishment, no matter how diabolic or inhuman, inflicting

less than some arbitrary quantity of injury.’ Id. [].

Hill v. Crum, 727 F.3d 312, 317 (4th Cir. 2013). In analyzing a

prisoner’s claim of unnecessary and wanton infliction of pain, “the

nature of the force, rather than the extent of the injury, is the

relevant inquiry.” Id. at 321.

Accepting the Complaint’s factual allegations as true and

viewing them in the light most favorable to Plaintiff, it appears

that the actions of “D-tac officers,” in particular, “beat[ing

Plaintiff ] on the floor [and] . . . smash[ing his] head against

the door” (Docket Entry 2 at 7), as well as later denying Plaintiff

medical care (id.), lacked a “‘rational[] relat[ionship] to a

legitimate nonpunitive governmental purpose,’” Kingsley, U.S.

at , 135 S. Ct. at 2473 (quoting Bell, 441 U.S. at 561), or,

alternatively, violated the Eighth Amendment proscription against

-13-

“unnecessary and wanton infliction of pain,” see Hill 727 F.3d at

317 (internal quotation marks omitted), as the Complaint states

that Plaintiff simply had “walk[ed] to his room” (Docket Entry 2 at

4), and that D-tac officers “needlessly and without provocation

assaulted [him]” (id. at 6).

Accordingly, the Court should deny the Second Dismissal Motion

with respect to Plaintiff’s Section 1983 claim against Defendant

Smith in his individual capacity.

CONCLUSION

The Complaint does not state a claim against Defendants

Pearmon, Boggs, and/or Taylor in either their official or

individual capacities. In addition, the Complaint fails to state

a claim against Defendant Smith in his official capacity. However,

liberally construed, the Complaint adequately states a claim

against Defendant Smith in his individual capacity.

IT IS THEREFORE RECOMMENDED that the First Dismissal Motion

(Docket Entry 24) be granted and that the claims against Defendants

Boggs, Pearman, and Taylor be dismissed under Federal Rule of Civil

Procedure 12(b)(6).

-14-

IT IS FURTHER RECOMMENDED that the Second Dismissal Motion

(Docket Entry 30) be granted in part and denied in part in that any

official capacity claim against Defendant Smith be dismissed under

Federal Rule of Civil Procedure 12(b)(6), but that the individual

capacity claim against Defendant Smith be allowed to proceed.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

July 8, 2020

-15-