granting motion to dismiss for individuals who were not named as defendants in the compliant but who were served
How later courts described this case
- granting motion to dismiss for individuals who were not named as defendants in the compliant but who were served
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:20-cv-00160-MR
JOHN L. GRIFFIN, JR., )
)
Plaintiff, )
)
vs. )
)
CHRISTOPHER DOVE, ) ORDER
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on initial review of the Complaint
[Doc. 1]. Plaintiff is proceeding in forma pauperis [Doc. 8].
I. BACKGROUND
Pro se incarcerated Plaintiff filed this civil rights suit pursuant to 42
U.S.C. § 1983, addressing an incident that allegedly occurred at Polk
Correctional Institution. He names as the sole Defendant Christopher Dove,
a correctional sergeant at Polk C.I.
In the Complaint, the Plaintiff alleges that, upon his arrival at Polk C.I.
on March 19, 2019, twenty or more correctional officers confronted and
threatened him in the receiving area because of something that had allegedly
occurred at another camp. Plaintiff alleges that a Sergeant Wilson tried to
force Plaintiff into handcuffs which were too tight and cut into Plaintiff’s flesh.
Plaintiff alleges that, when he complained about the painful handcuffs, ten
correctional officers rushed at him and slammed Plaintiff’s face into a wall.
Plaintiff alleges that Defendant Dove then punched Plaintiff’s eye three times
while Plaintiff was handcuffed from behind. Plaintiff was taken to medical
with swelling and severe pain to his face and nerve damage to his wrists.
Nurse Kilmon asked Plaintiff about his pain level but provided no other care.
Plaintiff alleges that the warden sent Plaintiff to Duke Medical Center three
days later, where Plaintiff received an MRI that revealed that three bones in
his face were broken. Plaintiff alleges that a specialist told him that he is
unable to have surgery to correct the broken bones because it would likely
result in blindness. Plaintiff seeks damages for his physical and
psychological pain.
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 “(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); see 28 U.S.C. §
1915A (requiring frivolity review for prisoners’ civil actions seeking redress
from governmental entities, officers, or employees).
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). 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 § 1983, a plaintiff must allege that he was
“deprived of a right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed under color of state law.”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
As a preliminary matter, Plaintiff mentions several individuals in the
Complaint who are not named as Defendants. See Fed. R. Civ. P. 10(a)
(“The title of the complaint must name all the parties”); see, e.g., Londeree
v. Crutchfield Corp., 68 F.Supp.2d 718 (W.D. Va. Sept. 29, 1999) (granting
motion to dismiss for individuals who were not named as defendants in the
compliant but who were served). The allegations against these individuals
are nullities and will be dismissed.
The Eighth Amendment prohibits prison officials from unnecessarily
and wantonly inflicting pain on prisoners. Hill v. Crum, 727 F.3d 312, 317
(4th Cir. 2013). “An inmate’s Eighth Amendment excessive force claim
involves both an objective and a subjective component.” Brooks v. Johnson,
924 F.3d 104, 112 (4th Cir. 2019). “The objective component asks whether
the force applied was sufficiently serious to establish a cause of
action.” Id. The subjective component “ultimately turns on whether force
was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.” Id. at 112-
13.
Plaintiff has stated a plausible claim that Defendant Dove used
excessive force against him for the purpose of causing harm. Therefore,
Plaintiff’s excessive force claim against Defendant Dove will be permitted to
proceed.
IV. CONCLUSION
For the reasons stated herein, the Complaint has passed initial review
for the alleged use of excessive force against Defendant Dove. To the extent
that Plaintiff asserts any claims against unnamed Defendants, such claims
are dismissed without prejudice.
This Court’s Local Rule 4.3 sets forth the procedure to waive service
of process for current or former employees of 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 Dove, who is alleged to be a current or former employee
of NCDPS.
IT IS, THEREFORE, ORDERED that the Complaint has passed initial
review against Defendant Dove.
IT IS FURTHER ORDERED that to the extent that Plaintiff asserts any
claims against unnamed Defendants, such claims are DISMISSED
WITHOUT PREJUDICE.
The Clerk of Court is respectfully directed to commence the procedure
for waiver of service as set forth in Local Civil Rule 4.3 for Defendant Dove,
who is alleged to be a current or former employee of NCDPS. The Clerk is
further respectfully directed to mail Plaintiff an Opt-In/ Opt-Out form pursuant
to the Standing Order in Misc. Case No. 3:19-mc-00060-FDW.
IT Is SO ORDERED Signed: September 28, 2020
nS
Martifi Reidinger ey,
Chief United States District Judge Alls