Kimble v. Lassiter

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:19-cv-60-FDW

WILLIAM KIMBLE, JR., et al., )

)

Plaintiffs, )

)

vs. ) ORDER

)

HUBERT CORPENING, et al., )

)

Defendants. )

__________________________________________)

THIS MATTER is before the Court on initial review of the Second Amended Complaint,

(Doc. No. 17). Plaintiff Kimble is proceeding in forma pauperis. (Doc. No. 22).

I. BACKGROUND

Pro se Plaintiff Kimble filed this civil rights suit pursuant to 42 U.S.C. § 1983 while

incarcerated at the Marion Correctional Institution. (Doc. No. 1). The Amended Complaint, which

was filed on behalf of Plaintiff and a number of other inmates, was severely deficient and was

dismissed on initial review. (Doc. Nos. 10, 12). The Court granted Plaintiffs 21 days within which

to cure the deficiencies and cautioned them that failure to do so would probably result in dismissal.

(Doc. No. 12). Only Plaintiff Kimble filed a Second Amended Complaint, (Doc. No. 17), which

is presently before the Court on initial review.

Plaintiff Kimble names the following as Defendants in the Second Amended Complaint:

Director of Prisons Kenneth Lassiter, Correctional Administrator H. Corpening, Assistant

Superintendent of Programs David Cothron, Program Director III Julie Jenkins, and Program

Director III Gary Swink.

Liberally construing the Second Amended Complaint and accepting the allegations as true,

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Plaintiff had a hearing before the Director’s Classification Committee (“DCC”) for a disciplinary

infraction on January 24, 2018 at Pasquotank C.I. He was given 180 days on restrictive housing

for assaulting another inmate. However, rather than restrictive housing, he was sent to Marion C.I.

to be placed in the Rehabilitative Diversion Unit (“RDU”)1 without notice or a hearing March 2,

2018.

According to Plaintiff, Defendant Lassiter created the 13-month RDU program and was

aware of Plaintiff’s procedural due process rights. He claims that all of the Defendants acted with

deliberate indifference and intentionally ignore Plaintiff’s due process rights. He claims that the

RDU is a 13-month three-step program during which the first 240 days consist of restrictive

regulations that is basically single-cell confinement which was supposed to have been eliminated

in 2017. He further complains that inmates are required to attend classes for two hours at a time,

that inmates are shacked and handcuffed in 4-point restraints whenever they are out of the cell,

they have to strip down when officers conduct regular cell searches, there is 24-hour lighting that

prohibits sleep, and the officers treat inmates unprofessionally.

As injuries, Plaintiff claims that has “develop[ed] some symptoms of post-traumatic stress

disorder and anxiety and emotional stress [and] had to see the doctor to be prescribed some

medication for headaches and not being able to sleep at night or during the day.” (Doc. No. 17 at

5).

As relief, Plaintiff seeks compensatory damages, punitive damages, costs, a jury trial, and

any additional relief the Court deems just, proper, and equitable. (Doc. No. 17 at 5).

1 The RDU program at Marion “was created as part of NCDPS’s recent policy reforms regarding restrictive

housing in the North Carolina prisons.” Covington v. Lassiter, No. 1:16cv387, 2017 WL 3840280, at *5 (W.D.N.C.

Sept. 1, 2017). A full description and discussion of the RDU program at Marion can be found in Covington v. Lassiter,

and this Court takes judicial notice of the Court's description of the RDU program in that action.

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II. STANDARD OF REVIEW

Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the

Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) 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.” 28 U.S.C. § 1915(e)(2)(B). In its frivolity

review, a court must determine whether the Complaint raises an indisputably meritless legal theory

or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios.

Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A complaint should not be dismissed for failure

to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff’s complaint as

true and drawing all reasonable factual inferences from those facts in the plaintiff’s favor, it

appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him

to relief.’” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of

Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).

A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520

(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the

pleadings is particularly appropriate where … there is a pro se complaint raising civil rights

issues.”). However, the liberal construction requirement will not permit a district court to ignore

a clear failure to allege facts in his complaint which set forth a claim that is cognizable under

federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must

still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);

see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal

civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff

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to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must

articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.

Id.

III. DISCUSSION

(1) Parties

A superior officer cannot be held vicariously liable under 42 U.S.C. § 1983 on a respondeat

superior theory, but he may be found liable under section 1983 on the basis of his own acts or

omissions. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978). A state official can be

in a § 1983 suit in three ways: in his personal capacity, his official capacity, or in a more limited

way, his supervisory capacity. King v. Rubenstein, 825 F.3d 206, 223–24 (4th Cir. 2016). For

personal liability, “it is enough to show that the official, acting under color of state law, caused the

deprivation of a federal right.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). In an official-

capacity suit, however, “[m]ore is required:” the suit is “treated as a suit against the entity,” which

must then be a “‘moving force’ behind the deprivation,” id. (quoting Polk County v. Dodson, 454

U.S. 312, 326 (1981)); thus, the entity’s “‘policy or custom’ must have played a part in the

violation of federal law,” id. (quoting Monell, 436 U.S. at 694). Meanwhile, a supervisor can be

liable where (1) he knew that his subordinate “was engaged in conduct that posed a pervasive and

unreasonable risk of constitutional injury;” (2) his response showed “deliberate indifference to or

tacit authorization of the alleged offensive practices;” and (3) that there was an “affirmative causal

link” between his inaction and the constitutional injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th

Cir. 1994) (internal quotation marks omitted).

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It appears that Plaintiff is attempting to state a claim against Defendant Lassiter for having

promulgated the RDU. However, Plaintiff has failed to adequately allege that the RDU exposed

him to unconstitutional conditions of confinement as set forth in Section (2), infra, so the claim

against Defendant Lassiter in his supervisory capacity is insufficient to proceed. Plaintiff does not

appear to allege liability based on policy or custom against the other Defendants. Moreover,

Plaintiff’s allegations are too vague and conclusory to set forth a claim based on any of the

Defendants’ personal actions or omissions. See generally Fed. R. Civ. P. 8(a)(2) (a short and plain

statement is required); Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory allegations,

unsupported by specific allegations of material fact are not sufficient); Dickson v. Microsoft Corp.,

309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege facts, directly or indirectly, that support

each element of the claim). Nor can Plaintiff rely on a theory of respondeat superior because there

is no such liability in § 1983 actions. See Monell, 436 U.S. at 694. Therefore, the Second Amended

Complaint fails to state a claim against any of the Defendants and is subject to dismissal on that

basis alone.

(2) Conditions of Confinement

The Eighth Amendment prohibits punishments that “involve the unnecessary and wanton

infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting Gregg v. Georgia, 428

U.S. 153, 173 (1976)). “It not only outlaws excessive sentences but also protects inmates from

inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761

(4th Cir. 1996). The Constitution “does not mandate comfortable prisons, … but neither does it

permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v.

Chapman, 452 U.S. 337, 349 (1981)). Thus, prison official must provide sentenced prisoners with

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adequate food, clothing, shelter, and medical care, and “take reasonable measures to guarantee

the[ir] safety….” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); see Farmer, 511 U.S. at 832-

34. Inmates’ claims that prison officials disregarded specific known risks to their health or safety

are analyzed under the deliberate indifference standard of the Eighth Amendment. See Pressly v.

Hutto, 816 F.2d 977, 979 (4th Cir.1987). To establish the imposition of cruel and unusual

punishment, a prisoner must prove two elements: (1) “the deprivation of [a] basic human need was

objectively sufficiently serious,” and (2) “subjectively the officials act[ed] with a sufficiently

culpable state of mind.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (quoting Strickler v.

Waters, 989 F.2d 1375, 1379 (4th Cir.1993) (quotation omitted).

To establish a violation of the Eighth Amendment in the context of a challenge to

conditions of confinement, an inmate must allege (1) a “sufficiently serious” deprivation under an

objective standard and (2) that prison officials acted with “deliberate indifference” to the inmate’s

health and safety under a subjective standard. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991). A

sufficiently serious deprivation occurs when “a prison official’s act or omission ... result[s] in the

denial of the minimal civilized measure of life’s necessities.” Id. at 298 (citing Rhodes, 452 U.S.

at 347).

The conditions that Plaintiff has described are not sufficiently serious to amount to a

constitutional deprivation and he has failed to adequately allege that prison officials imposed these

conditions with deliberate indifference to his health and safety. Plaintiff’s allegations regarding

the conditions to which he was subjected while in the RDU program do not satisfy the very high

standards for cruel and unusual punishment under the Eighth Amendment. See generally De’Lonta

v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003); see, e.g., Allen v. Mitchell, No. 1:18-CV-65-FDW,

2018 WL 4494988, at *3 (W.D.N.C. Sept. 19, 2018). Therefore, Plaintiff’s Eighth Amendment

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claims are insufficient to proceed.

(3) Due Process

The Fourteenth Amendment’s Due Process Clause provides that no person shall be

deprived of “life, liberty, or property, without due process of law.” U.S. Const. Amend XIV. The

first inquiry in any due process challenge is whether the plaintiff has been deprived of a protected

interest in property or liberty that was accomplished by state action. Tigrett v. The Rector and

Visitors of the Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002); Stone v. Univ. of Md. Med. Sys.

Corp., 855 F.2d 167, 172 (4th Cir. 1988). “Unless there has been a ‘deprivation’ by ‘state action,’

the question of what process is required and whether any provided could be adequate in the

particular factual context is irrelevant, for the constitutional right to ‘due process’ is simply not

implicated.” Stone, 855 F.2d at 172.

A plaintiff does not have a federally protected liberty interest in any particular housing or

classification unless it exceeds the scope of his original sentence and imposes an atypical and

significant hardship in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515

U.S. 472 (1995); Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991) (en banc) (“[C]hanges in a

prisoner’s location, variations of daily routine, changes in conditions of confinement (including

administrative segregation) and the denial of privileges … are necessarily functions of prison

management that must be left to the broad discretion of prison administrators to enable them to

manage prisons safely and efficiently.”).

Plaintiff admits that he received 180 days of restrictive housing in a disciplinary matter and

he does not appear to contest the process he received in those proceedings. Rather, he complains

that he was sent to Marion C.I.’s RDU program instead of the restrictive housing that he expected.

Plaintiff has failed to allege adequate facts showing that the RDU program posed an atypical and

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significant hardship in relation to the ordinary incidents of prison life under these circumstances.

See Allen, 2018 WL 4494988. Therefore, Plaintiffs due process claims are insufficient to proceed.

(4) Relief

To the extent that Plaintiff seeks injunctive relief, such a claim is moot because Plaintiff

no longer resides at Marion C.I.; his address of record is at the Bertie Correctional Institution. See

Williams v. Griffin, 952 F.2d 820 (4" Cir. 1991); Taylor v. Rogers, 781 F.2d 1047, 1048 n.1 (4%

Cir. 1986). Moreover, Plaintiff cannot recover compensatory damages because he has failed to

adequately allege the existence of a physical injury. See 42 U.S.C. § 1997e(e). See Perkins v.

Dewberry, 139 Fed. Appx. 599 (4 Cir. 2005) (unpublished) (stating that “de minimis physical

injuries cannot support a claim for mental or emotional injury.”); Mayfield v. Fleming, 32 Fed.

Appx. 116 (4 Cir. 2002) (unpublished) (stating that “the district court correctly concluded that

[plaintiffs] claim for money damages is barred because he can show no physical injury.”).

V. CONCLUSION

For the foregoing reasons, the Second Amended Complaint is dismissed for failure to state

a claim upon which relief can be granted and this case will be closed.

IT IS, THEREFORE, ORDERED that:

1. The Second Amended Complaint, (Doc. No. 17), is DISMISSED for failure to state a

claim pursuant to 28 U.S.C. § 1915(e)(2)(B)ai).

2. The Clerk of Court is directed to terminate this action.

Signed: June 11, 2019

Frank D. Whitney ¥

Chief United States District Judge ~“#*"