Moore v. Slagle

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:19-cv-242-FDW

BENSON MOORE, )

)

Plaintiff, )

)

vs. ) ORDER

)

MIKE SLAGLE, et al., )

)

Defendants. )

__________________________________________)

THIS MATTER is before the Court on initial review of the Amended Complaint, (Doc.

No. 12). Also pending are pro se Plaintiff’s Amended Motion for Classification of the Class, (Doc.

No. 13), and Motion for the Appointment of Counsel to Represent the Class, (Doc. No. 14).

Plaintiff is proceeding in forma pauperis. (Doc. No. 9).

I. BACKGROUND

Pro se incarcerated Plaintiff has filed a civil rights suit pursuant to 42 U.S.C. § 1983

addressing the conditions of his confinement at the Mountain View Correctional Institution.

Plaintiff also cites 18 U.S.C. § 242 as a basis for this lawsuit. He names as Defendants: Mountain

View C.I. Superintendent of Custody Mike Slagle, Superintendent of Programs Dexter Gibbs,

Physician Assistant Jeffrey Patane, Nurse Supervisor Norma Melton, and Registered Nurse

Brandon Barrier.

The Amended Complaint addresses the allegedly insufficient medical care and lack of

accommodations that Plaintiff received at Mountain View C.I. beginning when he was transferred

to that facility on December 1, 2017. He seeks declaratory judgment, injunctive relief,

compensatory damages, punitive damages, and such relief the Court may deem fit to which

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Plaintiff is entitled.

II. SCREENING STANDARD

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

Amended 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

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

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

In the instant case, Plaintiff addresses the allegedly inadequate medical care that he has

received at Mountain View C.I. beginning when he was transferred to that facility on December

1, 2017. The Complaint was insufficient to proceed and Plaintiff was ordered to amend, which he

did on January 19, 2020. The Amended Complaint is now before the Court on initial review.

However, just before Plaintiff filed the instant action in this Court, he filed a Complaint in

the Middle District of North Carolina on August 14, 2019 raising a number of issues including his

medical care at Mountain View that has now been transferred to this Court, case number 1:20-cv-

58-FDW.1 Plaintiff’s Complaint in case number 1:20-cv-58 addresses the alleged incidents at

Mountain View with regards to medical care and accommodations between his arrival at that

facility on December 1, 2017 and April 8, 2019. (1:20-cv-58, Doc. No. 2 at 36-49). In his Motion

to Amend/Update, Plaintiff adds allegations about incidents at Mountain View between April 12,

2019 and January 8, 2020. (1:20-cv-58, Doc. No. 11 at 1-13). Taking the Complaint and Motion

to Amend/Update together, Plaintiff’s allegations in case number 1:20-cv-58 are virtually identical

to those the allegations that Plaintiff has made in the instant case. See (Doc. No. 12 at 14-38). In

both cases, Plaintiff seeks declaratory judgment, injunctive relief, compensatory and punitive

1 The Middle District Court dismissed the Compliant as to incidents that allegedly occurred at other

institutions; only the incidents from Mountain View C.I. remain pending.

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damages, and such other relief as the Court may deem that Plaintiff is entitled. (Doc. No. 12 at 39-

40); (1:20-cv-58, Doc. No. 2 at 67-68).

“Because district courts are not required to entertain duplicative lawsuits, they

may dismiss such suits as frivolous pursuant to § 1915(e).” Cottle v. Bell, 229 F.3d 1142 (4th Cir.

Aug.14, 2000) (per curiam) (citing with approval Aziz v. Burrows, 976 F.2d 1158, 1158 (8th Cir.

1992)). Generally, a lawsuit is duplicative of another one if the parties, issues and available relief

do not significantly differ between the two. Id. (citing I.A. Durbin, Inc. v. Jefferson Nat’l Bank,

793 F.2d 1541, 1551 (11th Cir. 1986)).

Plaintiff has made nearly identical allegations against similar parties in his two lawsuits

that address the same incidents at the same institution during the same time period and seeks

similar relief in both.2 The instant case is therefore duplicative of case number 1:20-cv-58. Case

number 1:20-cv-58, which was filed first, will be permitted to proceed and the instant case will be

dismissed as frivolous. This dismissal is without prejudice for Plaintiff to file a superseding

Amended Complaint in case number 1:20-cv-58.

IV. PENDING MOTIONS

Although the instant case is being dismissed, the Court will address Plaintiff’s pending

Motions so that he does not simply re-file them in case number 1:20-cv-58.

In the Amended Motion for Classification of the Class, (Doc. No. 13), Plaintiff asks the

Court to qualify the action as a class action. The class are inmates who are housed at Mountain

View C.I., and whose rights are allegedly being violated by Defendants gross disregard for

comprehensive healthcare consistent with community standards. The Plaintiff alleges various

2 All of the Defendants that Plaintiff names in the instant case are also named as Defendants in case number

1:20-cv-58; the Court notes that Plaintiff refers to a number of additional individuals in this case whom he has not

formally named as defendants as required by Rule 10(a) of the Federal Rules of Civil Procedure.

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violations, including abruptly discontinuing effective and prescribed medications upon arrival at

Mountain View, blatantly ignoring numerous sick call complaints, discontinuing reasonable

accommodations without any reasonable justification or substitution with prescribed

accommodations, and thoughtlessly prescribing numerous ineffective accommodations that have

already been tried. Elder inmates are frequently denied IRAR requests for ADA accommodation

and they are forced to work while enduring a great disregard for their health concerns by

Defendants. Defendants have killed and came close to killing several of the Plaintiffs with years

of misdiagnoses and ignoring sick call and medical emergency complaints of pain and failing to

pursue further testing or seeking specialists. Defendants make it customary to deny any current

treatment it does not agree with and justifies their conduct with comments that “per custody this

facility does not allow…” or defendant will flash a printout without a heading or signature that

shows reasons for not authorizing medical items. Plaintiff has personally experienced Defendants’

“wrath” including cancellation of recommended appointments and medication. (Doc. No. 13 at 3).

This facility had a prior injunctive order to remove sheet metal window coverings from solitary

cell doors but the order has been ignored. This facility pays a monthly fine to the fire department

for overcrowding and to the city for overuse of water supply. (Doc. No. 4 at 4). This facility has

lost its federal funding due to overcrowding and supplements that assistance with excessive

disciplinary infractions at $10 per disciplinary. If a medical condition is not life threatening,

Defendants are referring all complaints of pain to the psychiatrist as they are forced to start over

in receiving corrective treatment. The sick calls cost $5 each. Plaintiff is claiming deliberate

indifference and asks the Court to classify this as a class action.

In his Motion for the Appointment of Counsel to Represent the Class, (Doc. No. 14).

Plaintiff claims that the majority of Plaintiffs cannot afford counsel, the issues involve multiple

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parties, the action is a class action mandating representation by an attorney, expert testimony and

witnesses will likely be necessary, and the Plaintiff cannot represent a class.

As a general matter, class actions are appropriate in § 1983 litigation. Kirby v. Blackledge,

530 F.2d 583, 588 (4th Cir. 1976). To be certified as a class action, a precisely defined class exist

must and the proposed class representatives must be members of the putative class. Fed. R. Civ.

P. 23(a); see East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (“a class

representative must be a part of the class”). In addition, the four prerequisites expressly set out in

Rule 23(a) must be satisfied. That is: (1) the class is so numerous that joinder of all members is

impracticable (the “numerosity requirement”); (2) there are questions of law or fact common to

the class (the “commonality requirement”); (3) the claims or defenses of the representative parties

are typical of the claims or defenses of the class (the “typicality requirement”); and (4) the

representative parties will fairly and adequately protect the interests of the class (the “adequacy-

of-representation requirement”). Fed. R. Civ. P. 23(a).

Once the prerequisites under Rule 23(a) are met, the action must next satisfy one of the

three alternative sets found within Rule 23(b):

(1) prosecuting separate actions by or against individual class members that would

create a risk of:

(A) inconsistent or varying adjudications with respect to individual class

members that would establish incompatible standards of conduct for the party

opposing the class; or

(B) adjudications with respect to individual class members that, as a

practical matter, would be dispositive of the interests of the other members not

parties to the individual adjudications or would substantially impair or impede their

ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds that apply

generally to the class, so that final injunctive relief or corresponding declaratory

relief is appropriate respecting the class as a whole; or

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(3) the court finds that the questions of law or fact common to class members

predominate over any questions affecting only individual members, and that a class

action is superior to other available methods for fairly and efficiently adjudicating

the controversy....

Fed. R. Civ. P. 23(b).

Plaintiff, a pro se prisoner, is barred from representing anyone other than himself. See

Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (the Fourth Circuit does not certify a

class where a pro se litigant will act as the representative of that class); see also Hafner v. Office

of Thrift Supervision, 977 F.2d 572 (4th Cir. 1992) (holding that, because plaintiff is pro se and is

not an attorney, although he filed pleadings purporting to represent a group, he is “barred from

representing anyone other than himself.”)(unpublished).

Petitioner seeks to avoid this bar by seeking the representation of counsel. However, there

is no absolute right to the appointment of counsel in civil actions such as this one. A plaintiff must

present “exceptional circumstances” in order to require the Court to seek the assistance of a private

attorney for a plaintiff who is unable to afford counsel. Miller v. Simmons, 814 F.2d 962, 966 (4th

Cir. 1987). Plaintiff has failed to demonstrate the existence of exceptional circumstances that

would warrant the appointment of counsel. To the extent that Plaintiff argues that the existence of

an unrepresented class is an exceptional circumstance, this argument is rejected because Plaintiff

has failed to establish that he can satisfy Rule 23. Therefore, Plaintiff’s Motions will be denied.

V. CONCLUSION

For the reasons stated herein, this action is dismissed as frivolous because it is duplicative

of case number 1:20-cv-58 and Plaintiff’s pending Motions are denied.

IT IS, THEREFORE, ORDERED that:

1. The Amended Complaint, (Doc. No. 12), is dismissed as frivolous pursuant to 28

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U.S.C. § 1915(e)(2)(B) (i).

2. Plaintiff's Amended Motion for Classification of the Class, (Doc. No. 13), and Motion

for the Appointment of Counsel to Represent the Class, (Doc. No. 14), are DENIED.

3. The Clerk is instructed to close this case.

Signed: April 2, 2020

Frank D. Whitney é □ □

Chief United States District Judge □□□□□