HUNTER v. KIMBROUGH

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

HARRY LEE HUNTER, JR., )

Plaintiff,

v. 1:21CV695

SHERIFF BOBBY F, KIMBROUGH, JR.

et al., )

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendants Sheriff Bobby F. Kimbrough, Jr., Major

Carleton, Captain Whitt, Captain B. Warren, Captain Chenault, and Sabrina Robinson’s

motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Ctvil Procedure. (Docket

Entry 27.) For the following reasons, the undersigned recommends that Defendants’ motion

to dismiss be dented.

I. BACKGROUND

Plaintiff, a pro se pretrial detainee proceeding i forma pauperis, initiated this action

pursuant to 42 U.S.C. § 1983 on September 7, 2021. (Compl, Docket Entry 2; see a/so Docket

Entries 1, 6.) In the Complaint, Plaintiff contends Defendants, employed at the Forsyth

County Sheriffs Department, including the Sheriff's Department, violated his Fifth and

Fourteenth Amendment tights to due process by extending his stay on segregation and placing

him in full restraints every time he is out of his cell without a hearing, and he never received a

disciplinary infraction warranting his placement in full restraints. (See generally Compl.)

Specifically, Plaintiff alleges that on April 16, 2020, while at the Forsyth County □

Detention Center, he was placed on an extended stay of segregation for one indecent exposure

infraction, per the request of Defendant Whitt, who stated Plaintiff was a security threat. Ud.

at 7, 8.)! Defendants Chenault, Warten, and Robinson approved of Defendant Whitt’s

request, and he continues to remain in segregation. (Id. at 6, 8.) Then in May 2020, Defendants

Whitt, Warren, Robinson, and Chenault placed Plaintiff on full restraints for refusing to

lockdown. (id. at 6, 7, 8; Docket Entry 2-1 at 1.)

Further, Plaintiff alleges that in regards to his extended stay in segregation he never

attended a hearing to defend himself, nor received “advance written notice of the hearing,” or

the heating decision of why they kept extending his stay in segregation. (Compl. at 8, 9.)

Additionally, he alleges that Defendants used his criminal record to extend his stay in

segtegation. (Docket Entry 2-1 at 4.) He also alleges that he “never recetved a written notice

of the reason why [he] was placed on full restraints or went to a hearing for it,’ he was not

given a chance to present evidence, he never “got the right to defend” himself, and he did not

receive a disciplinary infraction for his eleven-month placement on full restraints. (Compl. at

6, 8, 9.) . Moreover, he alleges he “complained” to Defendants Slater, Carleton, and

Kimbrough, but they did not correct their staff, and he remained in segregation. (Id. at 9, 11,

12; Docket Entry 2-1 at 2.)

Additionally, Plaintiff alleges that due to being placed in full restraints, anytime he

comes out of his cell he is in handcuffs and shackles, which remain on the “whole time,”

‘Unless otherwise noted, all citations in this recommendation to documents filed with the

Court refer to the page numbers located at the bottom right-hand corner of the documents as they

appeat on CM/ECF.

including duting indoor recreation and while using the law library tablet. (Compl. at 10, 11;

Docket Entty 2-1 at 2.) Moreover, he alleges that due to remaining in segregation he is only

allowed three hours out of his cell a week, less phone time, one weekly visit, and no religious

setvices. (Compl. at 6; Docket Entry 2-1 at 2.) Further, due to being on full restraints, he fell

on one occasion and hurt his back, he could not exercise, and his extended stay in segregation

makes him “sad and stressed.” (Id. at 10, 11, 13.) Lastly, he alleges that as a pretrial detainee

he should not be “punished.” (Docket Entry 2-1 at 4.)

For telief, Plaintiff seeks damages and injunctive relief to change the policy and

procedure so that, énler alia, an inmate cannot be held in segregation without due process and

tequiting a certain amount of infractions for an extended stay in segregation, and that he be

moved back to general population. (Compl. at 10, 14, 15.) In addition, he seeks medical

attention for his back pain. (Id. at 15.) He also attached numerous documents including

inmate tequest forms seeking to be taken off full restraints, moved to general population, and

to be brought before the Special Class Review Board. (Docket Entry 2-1 at 5-12.) In addition,

he included a April 16, 2020 memorandum from Defendant Whitt to Defendant Chenault

stating that Plaintiff should continue in segregation after he was placed in disciplinary

segtegation status on March 28, 2020 for masturbating in front of a female officer. (Id. at 20.)

Defendants Kimbrough, Carleton, Whitt, Warren, Chenault, and Robinson collectively

filed a motion to dismiss and supporting brief, in lieu of an answer, on April 21, 2022. (Docket

Entties 27, 28.) The Clerk of Court issued a Roseboro letter to Plaintiff advising him of his right

to respond to Defendants’ motion to dismiss. (See Docket Entry 29.) Subsequently, on May

2, 2022, Plaintiff filed a document docketed as a “response in opposition” to Defendants’

motion to dismiss. (Docket Entry 30.)? In the document, Plaintiff essentially restates his

allegations including that he never received a disciplinary infraction or went to a heating to be

placed on full restraints. (See Docket Entry 30.)

II. DISCUSSION

Defendants contend that Plaintiffs Complaint fails to state a claim upon which relief

can be granted. (Docket Entries 27, 28.) A motion to dismiss pursuant to Rule 12(b)(6) tests

the sufficiency of the Complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).

A complaint that does not “contain sufficient factual matter, accepted as true, to ‘state a claim

°*The undersigned notes that Plaintiff requested for his responsive document (Docket Entry

30) to be “filed as a response in opposition to the defendants Motion(s) to dismiss” (Docket Entry 30

at 1), thus the undersigned construes it as such. Nonetheless, if Plaintiff were attempting to amend

the original Complaint under Federal Rule of Civil Procedure 15, as a portion of his response brief 1s

filed on “Complaint” forms, the undersigned notes that the allegations asserted on those forms are

mostly redundant of the original Complaint. (See Docket Entry 30 at 2-7.) Further, to the extent

Plaintiff attempts to assert a conditions of confinement claim in the original Complaint or on any

portion of the documents responsive to Defendants’ motion to dismiss, as he indicates that his

segregation conditions—te., receiving only three hours a week out of his cell, coming out of his cell

only after 12 p.m. and while being in handcuffs and shackles, permitted only one visit a week, and no

religious services—also violates his Eighth Amendment tights, that claim would fail. (See generally

Compl. Docket Entries 2-1, 30 at 5,7.) Because Plaintiff was a pretrial detainee at the time of the

events alleged in his Complaint, and to the extent he raises a claim related to his conditions of

confinement, separate from the alleged violations of his extended stay in segregation and full restraints,

it would be evaluated “under the Due Process Clause of the Fourteenth Amendment.” Dyrand ».

Charles, No. 1:16CV86, 2016 WL 7495811, at *3 (M.D.N.C. Dec. 30, 2016) (unpublished) (citing Be//

v. Wolfish, 441 U.S. 520, 535 (1979)), report and recommendation adopted, 2017 WL 389108 (M.D.N.C. Jan.

26, 2017) (unpublished). “The 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). “As a practical matter, the Due Process Clause analysis is materially

indistinguishable from the Eighth Amendment analysis.” Adams v. New Hanover Cnty. Det. Cir, No.

5:16CT3020, 2017 WL 7513347, at *2 (E.D.N.C. June 30, 2017) (unpublished order). Thus, for

Plaintiff to establish a prima facie case that his pretrial confinement conditions violate the Due Process

Clause, he “must show both (1) a serious deprivation of a basic human need; and (2) deliberate

indifference to prison conditions on the part of prison officials.” Id. Here, a conditions of

confinement claim would fail because, the conditions Plaintiff alleges do not tise to the level of a

constitutional violation, as his allegations do not indicate he was deprived of any “basic human needs.”

See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989).

to relief that is plausible on its face”’ must be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Be//_Ai. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct.” Id; see also Simmons v.

United Mortg. ¢ Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (“Ona Rule 12(b) (6) motion,

a complaint must be dismissed if it does not allege enough facts to state a claim to relief that

is plausible on its face.”’) (citations and quotations omitted). ‘The “court accepts all well-pled

facts as true and construes these facts in the light most favorable to the plaintiff,” but does

not consider “legal conclusions, elements of a cause of action, and bare assertions devoid of .

. . factual enhancement[,] . . . umwartanted inferences, unreasonable conclusions, or

arguments.” Nemet Chevrolet, Lid. v. Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009)

(citations omitted). In other words, the standard requires a plaintiff to articulate facts, that,

when accepted as true, demonstrate the plaintiff has stated a claim that makes it plausible he

is entitled to relief. Francis v. Giacomelii, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Igbal, 556

US. at 678, and Twombly, 550 U.S. at 557).

A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Federal

Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires only “a short and plain statement of the

claim showing that the pleader is entitled to relief,” so as to “give the defendant fait notice of

what the ... claim is and the grounds upon which it rests... .” Twombly, 550 U.S. at 555

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 does not, however, unlock the doors

of discovery for a plaintiff armed with nothing more than conclusions. Fair notice is provided

by setting forth enough facts for the complaint to be “plausible on its face” and “raise a right

to telief above the speculative level on the assumption that all the allegations in the complaint

ate true (even if doubtful in fact)....” Jd at 555 (internal citations omitted). Further, in

tuling on a Rule 12(b)(6) motion, “the court may consider the allegations of the operative

complaint, as well as documents attached as exhibits or incorporated into the operative

complaint by reference.” Ho//loman v. Huntington Ingalls Inc., 277 (ED. Va. Nov. 5, 2020).

Pro se complaints ate to be liberally construed in assessing sufficiency under the Federal

Rules of Civil Procedure. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this

liberal construction, “generosity is not fantasy,” and the Court is not expected to plead a

plaintiffs claim for him. Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir. 1998).

In the present case, Defendants argue, iv/er alia, that Plaintiffs Complaint fails to allege

that he did not receive an opportunity to present evidence for the indecent exposure infraction

that originally resulted in him being placed in segregation; that while he alleges that his time in

segregation was extended without a hearing, the law only requires that he receive due process

for the original disciplinary infraction; that he fails to state a deliberate indifference claim

because his allegations simply amount to mete routine discomfort which falls short of the

extreme deprivation standard; and that without a physical injury, Plaintiff cannot recover

damages for his depression and mood swings. (See generally Docket Entries 27, 28.)

Upon further review, the undersigned concludes that Plaintiff's Complaint sufficiently

states a procedural due process claim against Defendants. “[I]t is settled that pretrial detainees

possess a constitutional right ‘to be free from punishment.” Wa/amson v. Stirling, 912 F.3d

154, 173 (4th Cir. 2018) (citing Be// ». Wodfish, 441 U.S. 520, 535 (1979)). The United States

Supreme Court has “recognized a distinction between punitive measures that may not

constitutionally be imposed prior to a determination of guilt and regulatory restraints that □

may.” Bel, 441 U.S. at 537. Permissible regulatory restraints include administrative and

disciplinary measures used by responsible jail officials “to maintain security and order” in

detention facilities. W7/amson, 912 F.3d at 174-75. “Accordingly, jail officials are entitled to

discipline pretrial detainees for infractions committed in custody and to impose restrictions

for administrative purposes without running afoul of Bel” Id. at 175. However, “such

administrative and disciplinary measures also implicate a pretrial detainee’s liberty interest in

remaining free from punishment.” Id. “Thus, proportional restrictions imposed on a pretrial

detainee for a permissible purpose can trigger due process protections, pursuant to Be// and

the Due Process Clause.” Id.

“TA] pretrial detainee’s procedural protections vary according to whether a restriction

was imposed for disciplinary or administrative putposes.” Id., see also Gowen v. Exnochs, No.

7:20CV00247, 2021 WL 960702, at *4 (W.D. Va. Mar. 15, 2021) (unpublished). “Importantly,

an additional legal principle governs the treatment of pretrial detainees by jail officials: such

detainees possess at least the same rights as convicted prisoners. ... ‘This settled tenant

_ ptovides further guidance to jail officials concerning the procedural tights of pretrial detainees,

because the tights accorded convicted prisoners provide a floor for detainee rights.”

Williamson, 912 F.3d at 176. “With regard to a procedural due process claim, a pretrial

detainee’s placement in segregation implicates his protected libetty interests.” Gowen, 2021

WL 960702, at *4. Thus, segregation “may not be imposed without due process.” Jd. (citation

omitted).

Further, where a restriction is imposed to discipline a pretrial detainee, then he is

entitled at least to the protections set forth in Wolf v. McDonnell, 418 U.S. 539 (1974). Id.

Specifically, Wolff requires: “(1) advance written notice of the disciplinary charges, (2) an

opportunity, when consistent with institutional safety and correctional goals, to call witnesses

and present documentaty evidence in his defense; and (3) a written statement by the factfinder

of the evidence relied on and the reasons for the disciplinary action.” Id. (citations omitted),

see also Williamson, 912 F.3d at 175-76. “If, however, a restriction imposed by the jail officials

is for administrative purposes—which include managerial and security needs—the level of

process to which the pretrial detainee is entitled is diminished.” Wi/kamson, 912 F.3d at 175.

“At a minimum, though, the detainee is entitled to the protections set forth in Hewitt v. Helms,

459 U.S. 460, [476] (1983).” Gowen, 2021 WL 960702, at *5. Specifically, he must be given

“some notice of the charges against him and an opportunity to present his views” to the

deciding official, although that opportunity may be provided after the fact. W#/zamson, 912

F.3d at 176-77; see also Gowen, 2021 WL 960702, at *5. Thus, officials must provide the pretrial

detainee with at least an “informal, nonadversary review of the information” supporting

segtegation, including submissions from the detainee, “within a reasonable time after

confining him to administrative segregation.” Walkamson, 912 F.3d at 184 (citation omitted).

“Prisoners ate also entitled to periodic review of their confinement to ensure that

administrative segregation is not ‘used as a pretext for indefinite confinement.” Id. at 177

(citation omitted); see also Gowen, 2021 WL 960702, at *5. Moreover, periodic reviews “must

be meaningful enough to take into account the ‘facts relating to a particular prisoner.”

Wilkamson, 912 F.3d at 183. “Beyond that, ‘the precise level of process that is due in a given

situation also depends on a balancing of interests’ under the test in Mathews v. Eldridge, 424

U.S. 319 (1976).” Gowen, 2021 WL 960702, at *5 (citing We/kamson, 912 F.3d at 177). In

accordance with Mathews principles, “a reviewing court must weigh the private interests

impacted by an official action; the tisk of ‘an erroneous deprivation of such interest through

the procedures used, and the probable value, if any,’ of additional safeguards; plus the

Government’s opposing interests.” W2/kamson, 912 F.3d at 177.

Here, the undersigned notes that it is unclear whether Plaintiff was placed on an

extended stay of segregation and in full restraints for disciplinary or administrative purposes.

(See generally Compl.) However, even under the “diminished” level of process that pretrial

detainees ate entitled to receive for restrictions imposed for administrative purposes, Plaintiff

sufficiently alleges that he was not provided with at least an “informal, nonadversaty review

of the information” supporting an extended stay on segregation. (See generally Compl.)

Specifically, Plaintiff alleges that he did not receive a decision as to why Defendants kept

extending his stay in segregation and he did not have the opportunity to defend himself.

(Compl. at 8-9.) Moreover, contrary to Defendants’ contentions, the law does not only require

that Plaintiff recetve due process for the original disciplinary infraction, as he is also entitled

to a periodic review of his confinement, to ensure that his placement in segregation is not used

as a ptetext for indefinite confinement. W2/hamson, 912 F.3d at 176-77. ‘Thus, given that

Plaintiffs allegations suggest he could have been placed in extended segregation and in full

restraints for either disciplinary or administrative purposes, as he alleges Defendants stated he

was a security threat and refused to lockdown, his allegations sufficiently allege he was not

afforded the proper level of due process under either Wo/f/nor Hewztt to remain in segregation

after he completed time for the indecent exposure infraction. See Love v. Sheahan, 156

F.Supp.2d 749, 756-57 (N.D. Hl. 2001) (concluding that a pretrial detainee adequately stated a

procedural due process claim, because he alleged that defendants failed to provide him with a

written explanation of the reason for his confinement in segregation, failed to consider

relevant exculpatory evidence, and did not afford him a hearing either before or at any point

duting his extended stay in segregation). Therefore, the undersigned recommends denying

Defendants’ motion to dismiss.

III. CONCLUSION

For the reasons stated herein, I'T IS HEREBY RECOMMENDED that Defendants

Sheriff Bobby F. Kimbrough, Jr., Major Carleton, Captain Whitt, Captain B. Warren, Captain

Chenault, and Sabrina Robinson’s motion to dismiss (Docket Entry 27) be DENIED and

that the procedural due process claims against Defendants be allowed to proceed.

ulixtos

United States Magistrate Judge □

January 20, 2023

Dutham, North Carolina

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