PEGRAM v. WILLIAMSON

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TOBY DIONNE PEGRAM, )

)

Plaintiff, )

)

v. ) 1:18cv828

)

C. WILLIAMSON, 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 Defendant Boggs’s Motion

“To Dismiss Plaintiff’s Complaint With Prejudice” (Docket Entry 18)

(the “Motion to Dismiss”). Plaintiff filed no response to the

Motion. (See Docket Entries dated May 16, 2019, to present.)1 For

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 Jan. 12, 2018) (unpublished) (internal citations omitted).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

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.”).

the reasons that follow, the Court should grant the Motion to

Dismiss.

BACKGROUND

This case began when Plaintiff, a pretrial detainee, filed □

pro se Complaint alleging deprivations of his constitutional rights

under 42 U.S.C. § 1983 in connection with the conditions of his

confinement at the Guilford County Detention Center. (See Docket

Entry 2 at 7-16.)* The Complaint names seven Defendants, all law

enforcement and corrections officers (see id. at 3-4), to include

Defendant Boggs, a “F[ir]st Lieutenant” at the Guilford County

Sheriff Detention “Bureau” (id. at 4).° It further alleges that,

on August 28, 2017, “while [Plaintiff was] housed at the High

Point, Guilford County Jail” (id. at 9), a verbal and physical

altercation transpired between Plaintiff and multiple officers,

including some Defendants (see id. at 9-11).

According to the Complaint, officers thereafter transported

Plaintiff to the Greensboro location of the Guilford County

Detention Center and placed him in punitive isolation. (Id. at

11.) The Complaint also asserts that Plaintiff “received both al[]

notice of [disciplinary] charges and a hearing” (id.), as well as

a post-hearing notice of the dismissal of the disciplinary matters

* 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.

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(see id.). However, the Complaint alleges that the notice

indicated that the dismissal did not “negate the fact [that

Plaintiff] assault[ed an officer] and [therefore would] remain in

punitive isolation regardless of being cleared of the charges.”

(Id.) Consequently, the Complaint maintains, “Plaintiff is

permanently assigned to punitive isolation .. . forced to wear leg

restraints, waist chain, [] handcuff[s], [and to be] escorted by

[two] officers [at all times] when [Plaintiff is] out [of his]

cell.” (Id. at 12.) The Complaint states that Plaintiff

thereafter began to make requests for grievance forms, which were

“denied [three or four] times [until] finally [another Defendant]

granted [permission to file] a grievance” (id.), which Plaintiff

then filed “against the impl[e]mentation of a policy without due

process” (id.). The Complaint asserts that other Defendants denied

the Grievance and Plaintiff’s subsequent appeal. (See id. at 12-

13.)

In addition, the Complaint alleges that Plaintiff requires a

“religious kosher diet,” and that, after he “continued to file

request forms for due process, [| his] food started coming cold or

half cooked.” (Id. at 13; see also id. (stating that Plaintiff

continued to receive such food until he “stopped requesting for due

process”) According to the Complaint, “along with the

constitutional deprivation, [unspecified officials instituted a]

policy to decrease [] Plaintiff’s rec[reation] hours from 7 to 3

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hours per week, [] mishandl[ed Plaintiff’s] food for months, [and

labeled Plaintiff an] escape risk.” (Id.) The Complaint, however,

does not contain any factual matter implicating Defendant Boggs in

any of those events. (See id. at 9-13.)

As concerns the Motion to Dismiss, the Complaint alleges that

Defendant Boggs “is totally aware of [the] constitutional

deprivation and [that he] told [] Plaintiff . . . [that] the

actions violate policy and due process[,] but [that] there [was] no

remedy, [higher ranking Defendants were] not going to remedy the

wrong[, and that] it [was] going to continue[.] Defendant Boggs

advised [Plaintiff] to speak with a[n] attorney.” (Id. at 14.)

Additionally, the Complaint states that “Defendant Boggs sta[r]ted

intercepting [and redirecting] request forms to [those higher

ranking Defendants]” (id.; accord id. at 8), and that he acted in

this manner “to hinder exhuastion of the jail’s grievance system”

(id. at 8). Lastly, the Complaint alleges that Defendant Boggs

“us[ed] the jail[’]s suicide policy to intimidate []Plaintiff to

stop his pursuit for due process” (id.), specifically, when

Plaintiff “attempted a peaceful hungl[e]r protest for his due

process rights” (id. at 14; see also id. (alleging that

“Plaintiff’s clothes and property [were] tak[en] away”)). Based on

those allegations, the Complaint asserts claims against Defendant

Boggs in his individual and official capacities (see id. at 4) and

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requests declaratory relief and punitive damages from him (see id.

at 17).

Defendant Boggs filed the Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6), because (i) “Plaintiff

failed to exhaust his administrative remedies” (Docket Entry 18 at

1), (ii) Plaintiff’s claims fail as a matter of law due to their

“conclusory [] nature, fail[ure] to state a legally cognizable

cause of action, and fail[ure] to allege proximate causation of

injury” (id. at 2), (iii) Plaintiff “failed to allege that

Defendant[ Boggs] acted with deliberate indifference” (id.), and

(iv) Defendant Boggs remains “entitled to qualified immunity”

(id.). Following the filing of the Motion to Dismiss, 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 [M]otion [to Dismiss] upon [him].” (Docket Entry 23

at 1.) The letter specifically cautioned Plaintiff that a “failure

to respond . . . within the allowed time may cause the [C]ourt to

conclude that [Defendant Boggs’s] 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

the [M]otion [to Dismiss], it is likely [his] case will be

dismissed.” (Id.) Despite these warnings, Plaintiff did not

respond. (See Docket Entries dated May 16, 2019, to present.)

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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

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

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(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. 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 Igbal, 556 U.S. at 679).

II. Official Capacity Claim

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,

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

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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 alleges that Plaintiff suffered injury

from Defendant Boggs’s actions and baldly asserts that Defendant

Boggs acted pursuant to “county policy, procedures[,] rule[s] and

regulations” of the Guilford County Detention Center. (See Docket

Entry 2 at 8.) Such conclusory allegations do not suffice,

particularly given the lack of any allegation that Defendant Boggs

possesses “final authority” over any such policy that contributed

to Plaintiff’s alleged injury. (See id. at 1-27.) The in forma

pauperis statute provides that “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

Defendant Boggs in his official capacity, and the Court should thus

dismiss with prejudice that aspect of Plaintiff’s claim.

III. Individual Capacity Claim

A. Failure to Exhaust Administrative Remedies

Turning to the individual capacity claim, Defendant Boggs

contends that Plaintiff failed to exhaust his administrative

remedies under the Prison Litigation Reform Act (the “PLRA”) “with

respect to these claims against [him].” (Docket Entry 19 at 5.)

“Under the PLRA, a prisoner bringing an action ‘with respect to

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prison conditions’ under [Section] 1983 must first exhaust all

available administrative remedies.” Moore v. Scotland Cty. Jail,

No. 1:05CV527, 2006 WL 2168940, at *1 (M.D.N.C. June 28, 2006)

(unpublished) (quoting 42 U.S.C. § 1997e). “It is well-settled by

now that Section 1997e’s exhaustion requirement is mandatory.”

Murray v. Dobyns, No. 1:12CV214, 2013 WL 3326661, at *2 (M.D.N.C.

July 1, 2013) (unpublished) (citing Jones v. Bock, 549 U.S. 199,

211 (2007)).

In support of the Motion to Dismiss, Defendant Boggs included

a description of Guilford County Detention Center’s Inmate Request

Procedure and Grievance Policy, as well as information regarding

Plaintiff’s utilization of the procedures. (See Docket Entry 19 at

5-8). As to such matters, Defendant Boggs refers to affidavits

from Guilford County Sheriff’s Office personnel (the “Captain Doub

Affidavit” and the “Officer Diehl Affidavit”). (See id.; see also

Docket Entry 20, ¶ 1; Docket Entry 21, ¶ 1.) According to the

Captain Doub Affidavit:

The Greensboro Jail utilizes an Inmate Request

Procedure to handle routine requests by inmates. Inmate

Request Forms (‘IRFs’) are available to inmates, upon

request, from floor officers assigned to supervise the

inmate’s housing unit or other officers responsible for

inmate housing and classification. IRFs are used by

inmates to ask for routine, general information or jail

services, such as information about court dates, or to

request access to the jail law library, religious

materials, or indigent inmate provision kits.

The Greensboro Jail also employs an Inmate Grievance

Policy, which is separate and apart from the Inmate

Request Procedure. Generally, an informal resolution may

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resolve a complaint without a formal grievance being

filed. The informal resolution process is initiated by

the inmate. When there is an indication of a complaint,

the officer or employee shall attempt a remedy for the

inmate. If the officer or employee is unable to provide

a satisfactory remedy for the complaint, the officer or

employee shall issue an [IRF] to the inmate. If the

inmate has satisfied the above requirements and is

unsatisfied with the resolution of that request or

complaint, then the inmate can request a grievance form.

To do so, the inmate must submit an [IRF] requesting a

Grievance Form, stating the matter to be grieved, and

detailing how the inmate has complied with the forgoing

requirements.

If proper, the inmate will then be issued a

Grievance Form by the Shift Commander or

Classification/Grievance Officer. . . .

(Docket Entry 19 at 6-7 (internal citations omitted) (quoting

Docket Entry 20, ¶¶ 3-5 (numbers in original omitted)).)

The Officer Diehl Affidavit, in turn, states that Officer

Diehl “personally searched through the Jail’s archive of [IRFs] and

Grievance Forms . . . [which] would include copies of any Inmate

Grievance Forms submitted to the Greensboro Jail Staff by []

Plaintiff.” (Docket Entry 19 at 7 (quoting Docket Entry 21, ¶¶ 3-

4).) The results from Officer Diehl’s search revealed that

Plaintiff [] filed only one [G]rievance during his

incarceration . . . . on October 9, 2017. It addresses

the administrative segregation and the two-officer

restriction during recreation time imposed on Plaintiff

following the use of force incident involving [another

Defendant] on August 28, 2017. The Grievance was denied

on October 27, 2017[.] Plaintiff appealed this denial

and the denial was upheld on November 8, 2017. The

[G]rievance in no way mentions Defendant Boggs or

addresses any action or decision of Defendant Boggs.

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(Docket Entry 19 at 7-8 (internal citations omitted) (quoting

Docket Entry 21, ¶ 5 (number in original omitted)).) The

referenced Grievance and relevant appeal material (which Defendant

Boggs supplied) confirm Defendant Boggs’s assertions regarding the

basis of the Grievance. (See Docket Entry 21-2 at 1-11.)

The Complaint similarly states that Plaintiff filed one

Grievance “concerning the facts relating to this [C]omplaint” on

“Oct[ober] 10, 2017,” which addressed “[i]mpermissible

[p]unishment[, a]ssault[, and] 8th and 14th Amendment violations.”

(Docket Entry 2 at 20.) The Complaint neither alleges that this

Grievance pertained to Defendant Boggs, nor references any other

grievance, much less a grievance (or an attempt to file a

grievance) against Defendant Boggs. (See id.; see also id. at 1-

27.) Under these circumstances, it appears that Plaintiff failed

to exhaust his administrative remedies as to any claim against

Defendant Boggs.

Moreover, the Clerk’s letter to Plaintiff expressly warned him

that Defendant Boggs may have submitted evidence in support of the

Motion to Dismiss, as well as that Plaintiff’s “failure to respond,

or, if appropriate, to file affidavits or evidence in rebuttal

within the allowed time may cause the [C]ourt to conclude that

[D]efendant[ Boggs’s] contentions are undisputed . . . .” (Docket

Entry 23 at 1.) Plaintiff thus received “a reasonable opportunity

to present all the material that is pertinent to [this issue],”

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Fed. R. Civ. P. 12(d). See generally Turner v. Clelland, No.

15CV947, 2016 WL 6997500, at *3 (M.D.N.C. Nov. 30, 2016)

(unpublished) (discussing consideration of material outside

pleadings at dismissal stage in PLRA exhaustion context),

recommendation adopted, 2017 WL 913630 (M.D.N.C. Mar. 7, 2017)

(unpublished)).

Ultimately, however, the Court need not resolve whether it

should dismiss the claims against Defendant Boggs at this stage of

the proceedings based on Plaintiff’s failure to exhaust

administrative remedies, because (for reasons shown in the

discussion that follows) the Complaint fails to state a claim

against Defendant Boggs.

B. Failure to State a Claim

Next, Defendant Boggs seeks dismissal of the claims against

him as conclusory and, more specifically, asserts that “Plaintiff

merely reiterates a sequence of events, linked with his beliefs[,]

and arrives at a conclusion that [Defendant] Boggs is responsible

for violations of his constitutional rights, but offers no

plausible explanation as [to] how [Defendant Boggs’s] alleged

act[s] . . . caused any harm.” (Docket Entry 19 at 8.) The

Complaint does not state a plausible claim against Defendant Boggs

and therefore the Court should dismiss the claims against him under

Federal Rule of Civil Procedure 12(b)(6).

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i. Access to Grievance Process

The Complaint alleges that Defendant Boggs told Plaintiff that

“[Lother Defendants’] actions violate policy and due process[,] but

[that] there [was] no remedy, [that higher ranking Defendants were]

not going to remedy the wrong[, and that] it [was] going to

continue[.] Defendant Boggs advised [Plaintiff] to speak with a[n]

attorney.” (Docket Entry 2 at 14.) The Complaint further alleges

that Defendant Boggs “sta[r]ted intercepting [and redirecting]

request forms to Major Rollins and Captain Dodson” (id.; accord id.

at 8), to “hinder exhaustion of the jail[’]s grievance system” (id.

at 8).*

The Fourth Circuit 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]

“Along with the previously-discussed Grievance, Defendant

Boggs provided Plaintiff’s IRFs submitted during his incarceration

at the Guilford County Detention Center. (See Docket Entry 21-1 at

1-109.) Upon review of those forms, it appears that, although

Plaintiff submitted in excess of 100 IRFs, Defendant Boggs handled

only 13. (See id. at 62, 69-73, 75, 88-91, 94-95.) These

circumstances do not support the conclusory allegation that

Defendant Boggs hindered Plaintiff’s access to the grievance

process. The Court, however, need not consider that material in

resolving the Motion to Dismiss.

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refused to accept a grievance . . . . [T]his claim concerns access

to grievance procedures which . . . is not constitutionally

protected.”). As a result, Plaintiff’s instant claim fails as a

matter of law.

ii. Suicide Protocol Placement

Additionally, the Complaint alleges in a conclusory manner

that Defendant Boggs “us[ed] the jail[’]s suicide policy to

intimidate Plaintiff to stop his pursuit for due process” (Docket

Entry 2 at 8), or, more specifically, retaliated against Plaintiff

by placing him on “suicide protocol” (id. at 14), in response to

Plaintiff’s “peaceful hung[e]r protest for his due process rights”

(id.). According to the Complaint, Defendant Boggs thereby caused

“Plaintiff’s clothes and property [to] be tak[en] away.” (Id.)

The Fourth Circuit has previously held that “an inmate

possesses the right to be free from retaliation for filing

grievances.” Brown, 697 F. App’x at 162. “To state a First

Amendment retaliation claim, a plaintiff must show: ‘(1) his speech

was protected, (2) the alleged retaliatory action adversely

affected his protected speech, and (3) a causal relationship

between the protected speech and the retaliation.’” Id. (quoting

Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015)). “[A]

plaintiff suffers adverse action if the defendant’s allegedly

retaliatory conduct would likely deter a person of ordinary

firmness from the exercise of First Amendment rights.” Id.

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(quoting Constantine v. Rectors & Visitors of George Mason Univ.,

411 F.3d 474, 500 (4th Cir. 2005)).

Defendant Boggs has argued that “the suicide watch protocol

. . . was a logical response to Plaintiff’s efforts to starve

himself.” (Docket Entry 19 at 8; see also Docket Entry 21-1 at 75

(setting forth explanation from another Defendant, in response to

IRF from Plaintiff) that: “[T]he ‘hunger strike’ protocol is a

medical protocol that is used when inmates are refusing to eat.

This protocol is not designed as a punitive measure, but only to

protect the safety and well-being of the inmate.”).) Consistent

with that argument, other courts have held that “[p]rison officials

have the right and the duty to take measures reasonably necessary

. . . to safeguard inmates committed to their custody and care.

This necessarily includes the right and duty to take reasonable

measures to insure the physical and mental health of inmates

engaged in hunger strikes.” Brown v. Graham, 2010 WL 6428251, at

*10 (N.D.N.Y. Mar. 30, 2010) (unpublished) (citing Grand Jury

Subpoena John Doe v. United States, 150 F.3d 170, 172 (2d Cir.

1998)).

Given such authority, the Complaint’s conclusory allegation

that Defendant Boggs placed Plaintiff on suicide watch during his

hunger strike in retaliation for pursuing a grievance (or other

protected activity), at most, “pleads facts that are merely

consistent with a defendant’s liability, [and thus] stops short of

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the line between possibility and plausibility of entitlement to

relief,” Iqbal, 556 U.S. at 678 (internal quotation marks omitted).

C. Qualified Immunity

Finally, Defendant Boggs argues for dismissal of the

Complaint’s Section 1983 individual capacity claim(s) against him

pursuant to the doctrine of qualified immunity. (See Docket Entry

18 at 2; see also Docket Entry 19 at 10-11.) “Qualified immunity

protects officers who commit constitutional violations, but who, in

light of clearly established law, could reasonably believe [their]

actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th

Cir. 2011). Absent a constitutional violation, the qualified

immunity analysis “ends right then and there.” Abney v. Coe, 493

F.3d 412, 415 (4th Cir. 2007).

For reasons discussed above, the Complaint does not plausibly

establish that Defendant Boggs unlawfully deprived Plaintiff of his

constitutional rights and thus the qualified immunity doctrine also

requires dismissal in this case.

CONCLUSION

Although it appears undisputed that Plaintiff failed to

exhaust his administrative remedies pertaining to his claims

against Defendant Boggs, the Court need not delve into the

procedural questions raised by consideration of such matters at

this stage of the proceedings, because Plaintiff has failed to

state any claim against Defendant Boggs.

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IT IS THEREFORE RECOMMENDED that Defendant Boggs’s Motion to

Dismiss (Docket Entry 18) be granted and that the claims against

him be dismissed under Federal Rule of Civil Procedure 12(b)(6).

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

February 5, 2020

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