The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:19-cv-00016-MR
RONALD MCCLARY, )
)
Plaintiff, )
)
vs. ) ORDER
)
MICHAEL BUTLER, )
)
Defendant. )
________________________________ )
THIS MATTER is before the Court on initial review of Plaintiff’s
Complaint [Doc. 1], filed under 42 U.S.C. § 1983. See 28 U.S.C. §§ 1915(e)
and 1915A. Plaintiff is proceeding in forma pauperis. [Docs. 2, 6].
I. BACKGROUND
Pro se Plaintiff Ronald McClary (“Plaintiff”) is a North Carolina state
inmate currently incarcerated at Bertie Correctional Institution in Windsor,
North Carolina. He filed this action on February 11, 2019, pursuant to 42
U.S.C. § 1983. [Doc. 1].
Plaintiff alleges that Defendant Michael Butler, identified as an officer
at Alexander Correctional Institution (“Alexander”), violated his Eighth
Amendment rights under the U.S. Constitution. On May 14, 2018, at 7:30
a.m., when Plaintiff was housed at Alexander, Defendant Butler sexually
assaulted Plaintiff by grabbing and squeezing Plaintiff’s testicles. [Doc. 1 at
4-5]. Plaintiff’s alleges that the assault caused Plaintiff “pain” and that
Plaintiff was not allowed to “go to medical” after the incident. [Id. at 5]. For
relief, Plaintiff seeks compensatory and punitive damages.
Plaintiff has previously filed an essentially identical action in this Court
under 42 U.S.C. § 1983 naming Defendant Butler as the sole defendant for
the same alleged conduct, Civil Case Nos. 5:18-cv-00098-FDW (“CV-98”).
Plaintiff filed the first action on June 15, 2018. [CV-98, Doc. 1]. It survived
initial review. [Id., Doc. 8]. On February 1, 2019, however, the first action
was dismissed without prejudice on Defendant’s motion for summary
judgment for Plaintiff’s failure to exhaust administrative remedies. [Id., Doc.
28]. Plaintiff appealed and the Fourth Circuit Court of Appeals affirmed the
Court’s Judgment.1 [Id., Docs. 30, 35].
Plaintiff filed the instant Complaint ten days later, on February 11,
2019. [Doc. 1]. Plaintiff attached documents to his Complaint reflecting
exhaustion of his administrative remedies. [See Doc. 1-1].
1 On July 26, 2018, Plaintiff filed yet another action that is essentially identical to that
presented herein. 5:18-cv-00118-FDW (“CV-118”). In that second action, Plaintiff tried to
bring the same claim as in the first action and, this time, included his exhaustion record.
That second case was dismissed, however, because the first action, which involved the
same claim against the same defendant, was still pending. [CV-118, Docs. 1, 8]. Plaintiff
appealed the dismissal of the second action and the Fourth Circuit Court of Appeals
affirmed the Court’s Judgment. [Id., Docs. 10, 14]. The present case is the Plaintiff’s
third attempt at bringing this claim.
II. STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, the Court must
review the Complaint to determine whether it is subject to dismissal on the
grounds that it is “frivolous or malicious [or] fails to state a claim on which
relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, under § 1915A
the Court must conduct an initial review and identify and dismiss the
complaint, or any portion of the complaint, if it 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 to such relief.
In its frivolity review, this 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). Furthermore, a pro se
complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972). 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).
III. DISCUSSION
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution or laws of the United States
and must show that the deprivation of that right was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments,” U.S. CONST. amend. VIII, and protects prisoners from the
“unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,
319 (1986). To establish an Eighth Amendment claim, an inmate must
satisfy both an objective component–that the harm inflicted was sufficiently
serious–and a subjective component–that the prison official acted with a
sufficiently culpable state of mind. Williams v. Benjamin, 77 F.3d 756, 761
(4th Cir. 1996). In adjudicating an excessive force claim, the Court must
consider such factors as the need for the use of force, the relationship
between that need and the amount of force used, the extent of the injury
inflicted, and, ultimately, whether the force was “applied in a good faith effort
to maintain or restore discipline, or maliciously and sadistically for the very
purpose of causing harm.” Whitley, 475 U.S. at 320-21.
Furthermore, the Supreme Court has made clear that “[a]n inmate who
is gratuitously beaten by guards does not lose his ability to pursue an
excessive force claim merely because he has the good fortune to escape
without serious injury.” Wilkins v. Gaddy, 130 S. Ct. 1175, 1178-79 (2010).
Also, it is well-settled that the Eighth Amendment protects inmates from
sexual abuse, see Schwenk v. Hartford, 204 F.3d 1187, 1196-97 (9th Cir.
2000), including abuse by prison guards, De’lonta v. Clarke, No. 7:11-cv-
00483, 2013 WL 209489, at *4 (W.D. Va. Jan. 14, 2013) (collecting cases).
Here, Plaintiff alleges that Defendant grabbed and squeezed his
testicles and that Plaintiff was in pain afterwards. This Court has previously
held that this claim survives initial review, only to dismiss without prejudice
for failure to exhaust administrative remedies. Plaintiff has now plausibly
shown that he has exhausted his administrative remedies. The Court,
therefore, again finds that this action survives initial review. That is, taking
Plaintiff’s allegations as true for the purposes of this initial review and
drawing all reasonable inferences in his favor, Plaintiff states an Eighth
Amendment claim against Defendant Butler.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the Plaintiff’s
Complaint against Defendant Butler for violation of Plaintiff’s Eighth
Amendment rights survives initial review.
This Court recently enacted Local Rule 4.3, which sets forth a
procedure to waive service of process for current and former employees of
the North Carolina Department of Public Safety (“NCDPS?”) in actions filed
by North Carolina State prisoners. In light of the Court's determination that
this case passes initial review, the Court will order the Clerk of Court to
commence the procedure for waiver of service as set forth in Local Civil Rule
4.3 for Defendant Butler, who is alleged to be a current or former employee
of NCDPS.
IT IS, THEREFORE, ORDERED that Clerk of Court shall commence
the procedure for waiver of service as set forth in Local Civil Rule 4.3 for
Defendant Butler, who is alleged to be a current or former employee of
NCDPS.
IT IS SO ORDERED.
Signed: November 22, 2019
A Reidinger ie Re
United States District Judge Aas