Wright v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:19-cv-146-FDW

KAYIE SHAUNE DeVORE WRIGHT, )

)

Plaintiff, )

)

vs. ) ORDER

)

UNITED STATES, et al., )

)

Defendants. )

__________________________________________)

THIS MATTER is before the Court on initial review of Plaintiff’s Amended Complaint,

(Doc. No. 17). Also pending are Plaintiff’s Motion for Summary Judgment, (Doc. No. 19), and

Motion for Default Judgment, (Doc. No. 20). Plaintiff is proceeding in forma pauperis. (Doc. No.

13).

I. BACKGROUND

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

The Complaint addressed a number of conditions at the Marion Correctional Institution where

Plaintiff resided at the time he filed the Complaint.1 On initial review, the Court dismissed the

Complaint with prejudice as to immune Defendants and dismissed the remainder of the Complaint

without prejudice and provided Plaintiff an opportunity amend.

In the Amended Complaint, Plaintiff names as Defendants: North Carolina Director of

Prisons Todd E. Ishee, Director of Security Risk Group Christopher Rich, Disciplinary Hearing

Officer Robert T. Barker, Marion Correctional Institution Superintendent Herbert Corpening,

1 Plaintiff’s current address of record is at the Polk Correctional Institution in Butner, North Carolina.

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Assistant Superintendent Donald Watkins, Assistant Superintendent of Programs David Cotherin,

RDU Program Director Julia Jenkins, RDU Program Director Gregory Swink, SRG Captain

Captain Long, SRG Lieutenant Surrat, SRG Sergeant Taylor, SRG Officer Adam Hergenrother,

SRG Officer J. Nichols, Psychiatrist Murphy, and Assistant Unit Manager Christopher Curtis.

Construing the Amended Complaint liberally and accepting it as true, Plaintiff has been

discriminated against, retaliated against, and deprived of his constitutional rights based on

UCC/sovereign citizen activities that North Carolina law and NCDPS policy classifies as gang-

affiliated. (Doc. No. 17-2 at 2). North Carolina General Statutes Chapter 25, Article I, §§ 207 and

308 labeling UCC activities as gang affiliation deliberately attempts to “compel and dissuade

Plaintiff who wishes to utilize, exercise and/or enforce constitutional rights.” (Doc. No. 17-2 at 2).

Defendants Rich, Corpening, Watkins, Long, Surrat, Taylor, and Nichols are “initiating the

implementation” by classifying as gang activity any documents labeled as “UCC” or “sovereign

citizen.” (Doc. No. 17-2 at 2). Defendant Ishee is legally responsible for the overall operation of

each institution within the DPS including Marion C.I. and approves the superintendent of each

prison. This is discriminatory and deprives Plaintiff of his religious and political beliefs. This is

slanderous and has resulted in a campaign of harassment and retaliation by Defendants

Hergenrother, Nichols, Taylor, Surrat, and Long with regards to disciplinary infractions. Plaintiff’s

First Amendment rights are being violated when Defendants sanction and punish him by restricting

his contact with family over the phone and through visitation when he places “UCC” on

documents, which is causing emotional distress. Ishee, as Director of Prisons, has knowledge of

“sovereign citizens.” (Doc. No. 17-2 at 4).

By treating UCC and sovereign citizen activities as gang affiliation, NCDPS is regularly

being fined excessive administrative fees by Defendant Barker without Plaintiff’s consent or

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approval of “signatory administrator” Defendant Corpening. (Doc. No. 17-2 at 1). Defendant Rich,

as SRG Director, implemented the policy classifying UCC as gang activity, charging it as an

infraction, and deducting $10 for each infraction. This attempts to discourage Plaintiff, harass him,

and discriminate against him. Defendants Long, Surrat, Hergenrother, Taylor, and Nichols have a

history of placing infractions against Plaintiff with a “deliberate campaign of harassment, extortion

and persuasions to minimize complaints filed and studies of law to continue the advantage for

Plaintiff’s labor.” (Doc. No. 17-2 at 4). This is why Defendants refuse to provide Plaintiff with

adequate legal assistance and/or information. Defendants are deliberately harassing Plaintiff and

failing to protect him by placing gang infractions over six times within a seven-day period and

three times within 24 hours. Defendant Barker entered a finding of guilt on all infractions by SRG

Defendants after being notified that Plaintiff never reviewed any policies and procedures regarding

sovereign citizens. Defendant Barker deliberately deprived Plaintiff of privileges and imposed

conditions out of retaliation due to complaints filed against him “without Plaintiff’s

acknowledgement of any policy and consent deducting excessive fines placing Plaintiff’s trust

account with an [sic] burden of debt over $1,000.00 without consent.” (Doc. No. 17-2 at 4).

Plaintiff’s loss of recreation through the implementation of excessive strip searching has

caused Plaintiff’s mental and physical well-being to deteriorate. This is due to Defendants’

deliberate indifference, negligence and wanton infliction of mental and physical pain. Defendants

imposed these conditions with deliberate indifference to Plaintiff’s health, safety, and conditions

of confinement. Plaintiff is forced to strip search for recreation, which can result in 20 strip

searches during a 28-day period. This is “a result from Defendants’ implementation.” (Doc. No.

17-2 at 3). Plaintiff is also forced to strip search when exiting his cell for medical, mental health,

disciplinary hearings, visits, court trips, etc., resulting in up to three or four strip searches per day.

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Defendants Corpening, Watkins, Cotherin, Jenkins, and Swink are the “proximate cause” of these

strip searches and are depriving Plaintiff of his serious need for adequate mental health treatment

and recreation.

Defendants Corpening, Watkins, Cotherin, Jenkins, Swink, Curtis, and Murphy

deliberately denied Plaintiff protective custody after Plaintiff notified them of his fear for his

physical and mental well-being and safety due to the discrimination and differential treatment

resulting in harsher conditions than other inmates. These actions were taken because Plaintiff is

exercising his constitutional rights and challenging Defendants’ scope of authority, inactions, and

policies and procedures.

Plaintiff continued to place mental health referrals seeking assistance with depression and

to notify the psychiatrist of mood disorders. The psychiatrist, Defendant Murphy, deliberately

failed to provide adequate treatment after acknowledging Plaintiff’s indefinite “de facto

segregation” of over 15 months. (Doc. No. 17-2 at 3).

Plaintiff complains that Defendants’ actions were taken without any apparent legitimate

penological purpose and are not reasonably related to legitimate penological interests.

Plaintiff lists as injuries pain and suffering, depression, stress, intentional interference,

intentional infliction of emotional distress, loss of personal property, theft of personal property,

defamation of character, denationalization, inadequate medical treatment, and depression. (Doc.

No. 17 at 5). He seeks damages, injunctive relief, transfer to a South Carolina correctional facility,

a jury trial, and any other relief the Court deems just, proper and equitable.

II. STANDARD OF REVIEW

Because Plaintiff is proceeding pro se, 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

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a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, § 1915A requires

an initial review of a “complaint in a civil action in which a prisoner seeks redress from a

governmental entity or officer or employee of a governmental entity,” and the court must identify

cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint 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 from 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). 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

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) First Amendment

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The First Amendment states that “Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech….” U.S.

Const. Amend I. The First Amendment applies to the states through the Fourteenth Amendment.

See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). A prison inmate retains those First Amendment

rights that are not inconsistent with his status as a prisoner or with the legitimate penological

objectives of the corrections system. Pell v. Procunier, 417 U.S. 817, 822 (1974); Pittman v. Hutto,

594 F.2d 407, 410 (4th Cir. 1979). When a prison restriction infringes upon an inmate’s First

Amendment rights, the alleged infringement “must be evaluated in the light of the central objective

of prison administration, safeguarding institutional security.” Bell v. Wolfish, 441 U.S. 520, 547

(1979) (citing Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 129 (1977)).

(A) Free Speech

A court assesses the reasonableness of a prison regulation that impinges on a prisoner’s

constitutional rights by considering: (1) whether there is a valid, rational connection between the

regulation and the legitimate governmental interest put forward to justify it, (2) whether there are

any alternative means of exercising the right that remain open to inmates, (3) the impact that

accommodation of the asserted constitutional right will have on guards, other inmates, and prison

resources generally, and (4) whether there are ready alternatives for furthering the governmental

interest. Turner v. Safley, 482 U.S. 78, 90-92 (1987).

References by pro se litigants to themselves as sovereign citizens or UCC secured parties

are commonly used under the discredited “Sovereign Citizen” theory to attempt to avoid

jurisdiction over them and their criminal convictions. See United States v. Ulloa, 511 Fed. Appx.

105, 106 n. 1 (2d Cir. 2013)) (“sovereign citizens are a loosely affiliated group who believe that

the state and federal governments lack constitutional legitimacy and therefore have no authority to

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regulate their behavior”); United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) (“Regardless

of an individual’s claimed status ... as a “sovereign citizen” [or] a “secured-party creditor,” ... that

person is not beyond the jurisdiction of the courts. These theories should be rejected

summarily”); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) (describing the

“sovereign citizen” arguments as having “no conceivable validity in American law”); United

States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992) (holding that defendant’s “sovereign citizen”

argument was “completely without merit” and “patently frivolous”); see, e.g., Gravatt v. United

States, 100 Fed. Cl. 279 (Fed. Cl. Sept. 27, 2011) (holding that plaintiff’s complaint was frivolous

and should be counted as a “strike” under 28 U.S.C. § 1915(g)). The sovereign citizen movement

has been classified by the Federal Bureau of Investigations as a domestic terror threat because they

are anti-government extremists. Colar v. Heyns, 2013 WL 141138 (W.D. Mich. Jan. 11, 2013).

Plaintiff appears to claim that Defendants’ restrictions on sovereign citizen UCC activity

are violating his right to free speech. Restrictions on expressing sovereign citizen and UCC

ideology does not violated Plaintiff’s free speech rights because restrictions on dangerous and

subversive groups is rationally related to a legitimate penological interest.

(B) Free Exercise of Religion

To state a free exercise claim under the First Amendment, a plaintiff must allege facts

sufficient to show that he held a sincere religious belief, and that the official action or regulation

substantially burdened his exercise of that belief. Hernandez v. Comm’r, 490 U.S. 680, 699

(1989). A prison policy that substantially burdens an inmate’s ability to practice his religion

withstands a First Amendment challenge when it is “reasonably related to legitimate penological

interests.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner, 482 U.S. at

89).

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Plaintiff appears to claim that DPS policy classifying UCC documents and sovereign

citizen activity as gang activity is depriving him of the right to practice his religion. Plaintiff has

failed to state a claim for relief. He does not adequately allege that he has a sincerely held religious

belief or that official action substantially burdened his exercise of that belief.2

Plaintiff’s First Amendment claims will therefore be dismissed as frivolous and for failure

to state a claim upon which relief can be granted.

(C) Retaliation

The First Amendment right to free speech “includes not only the affirmative right to speak,

but also the right to be free from retaliation by a public official for exercising that right.” Suarez

Corp. v. McGraw, 202 F.3d 676 (4th Cir. 2000); see Am. Civil Libs. Un. of Md., Inc. v. Wicomico

Cnty., 999 F.2d 780, 785 (4th Cir. 1993) (“Retaliation, though it is not expressly referred to in the

constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals’

exercise of constitutional rights.”). Prison officials may not retaliate against an inmate for

exercising a constitutional right. See Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978). To

succeed on such a claim, a plaintiff must establish: (1) his or her speech was protected; (2) the

defendant’s alleged retaliatory action adversely affected the plaintiff’s constitutionally protected

speech; and (3) a causal relationship exists between the speech and retaliatory action. Suarez, 202

F.3d at 686; see also Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Wicomico Cnty., 999 F.2d at

785; Huang v. Board of Governors of Univ. of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990). In the

prison context, such claims are treated with skepticism because “[e]very act of discipline by prison

officials is by definition ‘retaliatory’ in the sense that it responds directly to prisoner misconduct.”

2 Assuming arguendo that Plaintiff is attempting to state a claim under the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. § 2000cc-1(a), he has likewise failed to do so.

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Adams, 40 F.3d at 74.

Plaintiff appears to argue that Defendants Corpening, Watkins, Cotherin, Jenkins, Swink,

Curtis, and Murphy retaliated against him by denying him protective custody because Plaintiff is

exercising his constitutional rights and challenging Defendants’ scope of authority, inactions, and

policies and procedures. He further appears to allege that Defendants Hergenrother, Nichols,

Taylor, Surrat, and Long are retaliating against him by giving him disciplinary infractions.

Plaintiff’s claim is too vague and conclusory to proceed. He has sufficiently alleged that

he exercised his constitutional rights to criticize Defendants. However, he has failed to sufficiently

allege that Defendants’ alleged retaliatory actions adversely affected his free speech or that there

is any causal relationship between the speech and the allegedly retaliatory action. See Sections 2,

4(B), infra. Moreover, this appears to be an attempt by Plaintiff to undermine the validity of his

disciplinary consequences of his actions with which he disagrees. See Section 2, infra.

(2) Prison Discipline

Prisoners retain rights under the Due Process Clause, but prison disciplinary proceedings

are not part of a criminal prosecution and the full array of rights due a defendant in such

proceedings does not apply. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citing Morrissey

v. Brewer, 408 U.S. 471, 488 (1972)). In prison disciplinary proceedings where an inmate faces

the possible loss of diminution credits or solitary confinement, he is entitled to certain due process

protections. These include: (1) advance written notice of the charges against him; (2) a written

statement of the evidence relied on and the reasons for taking any disciplinary action; (3) a hearing

where he is afforded the right to call witnesses and present evidence when doing so is not

inconsistent with institutional safety and correctional concerns, and a written decision; (4) the

opportunity to have non-attorney representation when the inmate is illiterate or the disciplinary

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hearing involves complex issues; and (5) an impartial decision-maker. See Wolff, 418 U.S. at

564-71. There is no constitutional right to confront and cross-examine witnesses or to retain and

be appointed counsel. See Baxter v. Palmigiano, 425 U.S. 308, 322 (1976); Brown v. Braxton,

373 F.3d 501, 505-06 (4th Cir. 2004). As long as the hearing officer’s decision contains a written

statement of the evidence relied upon, due process is satisfied. See Baxter, 425 U.S. at 323 n.5.

Moreover, substantive due process is satisfied if the disciplinary hearing decision was based upon

“some evidence.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455 (1985). A

disciplinary hearing officer’s findings will only be disturbed when unsupported by any evidence,

or when wholly arbitrary and capricious. See Hill, 472 U.S. at 456; see also Baker v. Lyles, 904

F.2d 925, 933 (4th Cir. 1990). Claims for declaratory relief and money damages based on

allegations of deceit and bias on the part of state officials involved in disciplinary proceedings that

necessarily imply the invalidity of the punishment imposed is not cognizable under § 1983.

Edwards v. Balisok, 520 U.S. 641 (1997).

Plaintiff appears to argue that he should not have been charged with disciplinary infractions

charged with fines or other sanctions because he disagrees with prison authorities that sovereign

citizen/UCC activity is gang activity. Plaintiff’s challenge to the disciplinary actions and fines

would necessarily imply the invalidity of the punishment and therefore this claim is not cognizable

under § 1983. See Edwards, 520 U.S. at 641. Plaintiff’s challenge to Defendants’ disciplinary

actions based on his gang activity will therefore be dismissed as frivolous and for failure to state a

claim.

(3) Strip Searches

The Fourth Amendment protects “[t]he right of the people to be secure in their persons ...

against unreasonable searches and seizures.” U.S. Const. Amend. IV. The applicability of the

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Fourth Amendment turns on whether “the person invoking its protection can claim a ‘justifiable,’

a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government

action.” Hudson v. Palmer, 468 U.S. 517, 525 (1984) (quoting Smith v. Maryland, 442 U.S. 735,

740 (1979)). A prisoner retains “some legitimate expectation of privacy in his person” under the

Fourth Amendment. See King v. Rubenstein, 825 F.3d 206, 214–15 (4th Cir. 2016). The Supreme

Court has “developed a flexible test to determine the reasonableness of a broad range of sexually

invasive searches....” United States v. Edwards, 666 F.3d 877, 883 (4th Cir. 2011) (citation and

internal quotation marks omitted). The following factors determine the reasonableness of the

search: “the scope of the particular intrusion, the manner in which it is conducted, the justification

for initiating it, and the place in which it is conducted.” Bell, 441 U.S. at 559. “The task of

determining whether a policy is reasonably related to legitimate security interests is ‘peculiarly

within the province and professional expertise of corrections officials.’” Florence v. Bd. of Chosen

Freeholders of Cnty. of Burlington, 566 U.S. 318, 328 (2012) (quoting Bell, 441 U.S. at 548).

Searches conducted “in an abusive fashion … cannot be condoned.” Bell, 441 U.S. at 560. The

deference afforded to prison administrators “does not insulate from review actions taken in bad

faith and for no legitimate purpose.” Williams v. Benjamin, 77 F.3d 756, 765 (4th Cir. 1996)

(quoting Whitley v. Albers, 475 U.S. 312, 322 (1986)).

Plaintiff argues that Defendants are imposing excessive strip searches by requiring strip

searches for recreation, medical and mental health appointments, disciplinary hearings, visits, and

court trips. Plaintiff appears to allege that he is choosing to forego mental health treatment and

recreation to avoid the strip searches and that the lack of treatment and recreation is negatively

impacting his mental and physical well-being.

Plaintiff has failed to state a sufficient § 1983 claim. Plaintiff is a convicted inmate who

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admits he has accrued numerous prison disciplinary infractions for gang activity. See generally

Bell, 441 U.S. at 559 (noting that detention facility is a unique place fraught with serious security

dangers). Although Plaintiff conclusively asserts that Defendants’ actions were taken without any

apparent legitimate penological purpose, does not support that conclusion with any factual

allegations and has alleged nothing to suggest that the strip searches are unreasonable in any way.

See generally Assoc. Gen. Contractors of Ca., Inc. v. Ca. St. Council of Carpenters, 459 U.S. 519,

526 (1983) (although the court must assume the plaintiff can prove the facts alleged, it is not proper

to assume that the plaintiff can prove facts that it has not alleged or that defendants have violated

the law in ways that have not been alleged). Plaintiff’s vague and conclusory allegations fail to

state a plausible claim that he is being subjected to unreasonable searches. See, e.g., Whitehead v.

Marcantel, 766 Fed. Appx. 691 (10th Cir. 2019) (affirming dismissal of inmate’s § 1983 claim that

strip searches prior to family visits violates the Fourth Amendment where plaintiff failed to allege

any facts to support his assertion that pre-visit searches are unreasonable). This claim will therefore

be dismissed.

(4) Cruel and Unusual Punishment

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, 77 F.3d at 761. 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 adequate food, clothing, shelter, and medical

care, and “take reasonable measures to guarantee the[ir] safety….” Hudson v. Palmer, 468 U.S.

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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).

(A) Deliberate Indifference to Serious Medical Needs

As applied to prisoners, this constitutional guarantee encompasses a right to medical care

for serious medical needs, including psychological needs. Estelle v. Gamble, 429 U.S. 97, 103-04

(1976); see Buffington v. Baltimore Cnty., Md., 913 F.2d 113, 120 (4th Cir. 1990) (“A serious

psychological impairment can qualify as [a serious] medical need.”). To state such a claim, a

plaintiff must show that he had serious medical needs and that the defendant acted with deliberate

indifference to those needs. Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir.

2017) (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). The deliberate indifference standard

has two components. The plaintiff must show that he had serious medical needs, which is an

objective inquiry, and that the defendant acted with deliberate indifference to those needs, which

is a subjective inquiry. See Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). A “serious medical

need” is “one that has been diagnosed by a physician as mandating treatment or one that is so

obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Id. at

241 (internal quotation marks omitted). A “serious medical need” is “one that has been diagnosed

by a physician as mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Iko, 535 F.3d at 241 (internal quotation marks

omitted). To constitute deliberate indifferent to a serious medical need, “the treatment [a prisoner

receives] must be so grossly incompetent, inadequate, or excessive to shock the conscience or to

be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990),

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overruled on other grounds by Farmer, 511 U.S. at 825. However, mere negligence or malpractice

does not violate the Eighth Amendment. Miltier, 896 F.2d at 852. “[M]ere ‘[d]isagreements

between an inmate and a physician over the inmate’s proper medical care’ are not actionable absent

exceptional circumstances.” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (quoting

Wright v. Collins, 766 F.2d 841, 840 (4th Cir. 1985)). To be found liable under the Eighth

Amendment, a prison official must know of and consciously or intentionally disregard “an

excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837; Johnson v. Quinones, 145 F.3d

164, 167 (4th Cir. 1998).

Plaintiff alleges that he continued to place mental health referrals seeking assistance with

depression and to notify the psychiatrist of mood disorders. Psychiatrist Defendant Murphy

deliberately failed to provide adequate treatment after acknowledging Plaintiff’s indefinite “de

facto segregation” of over 15 months. (Doc. No. 17-2 at 3).

Plaintiff’s claim is too vague and conclusory to proceed. Although Plaintiff appears to

assert that he had depression and mood disorders stemmed from long-term de facto segregation,

he has failed to allege that his mental condition was sufficiently objectively serious to constitute a

serious medical need. He has also failed to adequately allege that Defendant Murphy intentionally

disregarded an excessive risk to his health or safety. This claim will therefore be dismissed for

failure to state a claim.

(B) Failure to Protect

The Eighth Amendment imposes a duty on prison officials to “protect prisoners from

violence at the hands of other prisoners.” Farmer, 511 U.S. at 833 (internal quotations omitted).

To obtain relief under § 1983 on a claim of failure to protect, an inmate must show: (1) “serious

or significant physical or emotional injury” resulting from that failure; and (2) the prison officials

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had a “sufficiently culpable state of mind,” which in this context is deliberate indifference. Farmer,

511 U.S. at 834. A prison official is “deliberately indifferent to a substantial risk of harm to a

[prisoner] when that [official] ‘knows and disregards’ the risk.” Parrish ex rel. Lee v. Cleveland,

372 F.3d 294, 302 (4th Cir. 2004) (quoting Farmer, 511 U.S. at 837). “It is not enough to prove

that the official should have known of the risk; instead, ‘the official must both be aware of the facts

from which the inference could be drawn that a substantial risk of harm exists, and he should draw

the inference.’” Kartman v. Markle, 582 Fed. Appx. 151, 153 (2014) (quoting Farmer, 511 U.S. at

837). A showing of negligence does not rise to the level of deliberate indifference. Davidson v.

Cannon, 474 U.S. 344, 347-48 (1986).

Plaintiff contends that Defendants Corpening, Watkins, Cotherin, Jenkins, Swink, Curtis,

and Murphy deliberately denied Plaintiff protective custody after he notified them of his fear for

his physical and mental well-being and safety due to the discrimination and differential treatment

resulting in harsher conditions than other inmates.

Plaintiff has not sufficiently alleged that there was a substantial risk to his health or safety

and to which Defendants knowingly exposed him by refusing to place him in protective custody.

Plaintiff’s vague and conclusory allegations fail to state a claim for failure to protect and therefore

this claim will be dismissed.

IV. PENDING MOTIONS

Plaintiff has filed a Motion for Summary Judgment, (Doc. No. 19), and Motion for Default

Judgment, (Doc. No. 20), that are pending before the Court for consideration. Both of Plaintiff’s

Motions are premature because none of his claims have passed initial review and no Defendant

has been served. These Motions are also moot because the Amended Complaint has failed to pass

initial review and this action will be closed.

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V. CONCLUSION

For the reasons stated herein, the Amended Complaint is dismissed as frivolous and for

failure to state a claim upon which relief can be granted, Plaintiffs pending Motions will be denied,

and this case will be closed.

IT IS, THEREFORE, ORDERED that:

1. The Amended Complaint, (Doc. No. 17), is DISMISSED pursuant to 28 U.S.C. §

1915(e)(2)(B)(i)-Gy) as frivolous and for failure to state a claim upon which relief can

be granted.

2. Plaintiff's Motion for Summary Judgment, (Doc. No. 19), and Motion for Default

Judgment, (Doc. No. 20), are DENIED.

3. The Clerk is instructed to close this case.

April 3, 2020

Frank D. Whitney ¥

Chief United States District Judge ~“#*"

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