Michelson v. Miller

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:19-cv-00311-MR

CHRISTOPHER LEE MICHELSON, )

)

Plaintiff, )

)

vs. )

)

QUINTIN MILLER, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on initial review of the Second

Amended Complaint [Doc. 16]. Also pending is Plaintiff’s Motion to Transfer

Case to Another District [Doc. 17]. Plaintiff is proceeding in forma pauperis.

[Doc. 8].

I. BACKGROUND

Pro se Plaintiff, a pretrial detainee at the Buncombe County Detention

Facility (BCDF), filed this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff’s Amended Complaint [Doc. 13] was dismissed on initial review and

Plaintiff was granted the opportunity to amend.1 [Doc. 15]. The Second

Amended Complaint is now before the Court for initial review. He names as

1 This case was assigned to Judge Frank D. Whitney at that time.

Defendants: Quintin Miller, the Sheriff of Buncombe County; FNU Maxwell,

a detention officer at BCDF; Colby Dodd, a physician’s assistant at BCDF;

and Dustin Dow, a criminal defense attorney.

Plaintiff alleges that, on September 20, 2019, he was helping

Defendant Maxwell serve the lunch trays. Defendant Maxwell warned

Plaintiff that the inmate in cell 43 was dangerous. Defendant Maxwell then

“disregarded the risk,” opened cell 43, and quickly stepped out of the way as

the dangerous inmate shoved Plaintiff, causing him to fall. [Doc. 16 at 5].

Plaintiff alleges that this incident caused severe pain in his lower back and

right hip as well as serious emotional injury. Plaintiff alleges that Defendant

Miller’s training of detention officers “must have been inadequate” based on

Defendant Maxwell’s actions and that the failure to train “must be seen to

have actually caused the constitutional deprivation at issue.” [Doc. 16 at 7].

Plaintiff appears to allege that he went to medical after the incident

during lunch service and that Defendant Dodd told him that he probably

pulled a muscle. Plaintiff alleges that he returned to medical frequently but

he was always told that “it takes time for pulled mus[cles] to heal.” [Doc. 16

at 11]. Plaintiff alleges that he never healed and that he is still suffering from

constant severe pain. Plaintiff alleges that Defendant Dodd should have

considered the September 20, 2019 incident an emergency due to Plaintiff’s

age2 and that he should have ordered x-rays. Plaintiff alleges that “it’s almost

as if [Defendant] Dodd was told not to order x-rays.” [Doc. 16 at 11].

Plaintiff alleges that a superior court judge had placed Plaintiff at

Madison County Detention Facility for safekeeping. Plaintiff alleges that his

appointed criminal attorney, Defendant Dow, was acting under the color of

law when he disregarded the safekeeping order and insisted that BCDF

“bring [Plaintiff] back” without asking whether Plaintiff felt safe at BCDF.3

[Doc. 16 at 8]. When Plaintiff asked Defendant Dow to explain his actions,

Dow stated that he thought Plaintiff wanted to return to BCDF. Plaintiff

alleges that Defendant Dow “was essentially functioning as an officer by

assisting the jail [to] have Plaintiff returned despite the Order from a superior

court judge” and was deliberately indifferent to Plaintiff’s health and safety

by allowing Plaintiff to be returned to BCDF. [Doc. 16 at 8].

Plaintiff seeks damages and requests the appointment of counsel

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

2 According to the Buncombe County Sheriff’s Office website, Plaintiff is currently 56 years

old. See https://buncombecountyso.policetocitizen.com/Inmates/Catalog; Fed. R. Ev. 201

(addressing judicial notice).

3 Plaintiff does not allege the dates upon which these transfers occurred.

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). To satisfy the

state action requirement, a plaintiff must demonstrate that the conduct at

issue is “fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457

U.S. 922, 937 (1982). If the defendant is not a state actor, there must be a

“sufficiently close relationship with state actors such that a court would

conclude that the non-state actor is engaged in the state’s actions.”

DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999).

Plaintiff attempts to assert a claim against his appointed criminal

defense lawyer, Defendant Dow, with regards to Plaintiff’s transfers between

BCDF and another jail. Although the Second Amended Complaint contains

a formulatic recitation of the “color of state law” requirement, Plaintiff makes

absolutely no factual allegations to support the contention that Defendant

Dow was acting under the color of state law when he had Plaintiff transferred

back to BCDF. See generally Polk County v. Dodson, 454 U.S. 312, 325

(1981) (“a public defender does not act under the color of state law when

performing a lawyer’s traditional functions as counsel to a defendant in a

criminal proceeding.”); Fleming v. Asbill, 42 F.3d 886, 890 (4th Cir. 1994)

(“Private lawyers do not act ‘under the color of state law’ merely by making

use of the state’s court system.”). Therefore, the claims against Defendant

Dow will be dismissed.4

4 Even if Plaintiff could demonstrate that Defendant Dow was acting under the color of

state law, his deliberate indifference claim would still be subject to dismissal because

Plaintiff has failed to allege that Defendant Dow knew of, and deliberately disregarded, a

The Eighth Amendment5 prohibits the infliction of “cruel and unusual

punishments” and protects prisoner from 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)). To establish a violation of the Eighth

Amendment, an inmate must allege (1) a “sufficiently serious” deprivation

under an objective standard and (2) that prison officials acted with “deliberate

sufficiently serious risk to Plaintiff’s health or safety.

5 Because Plaintiff was a pre-trial detainee at the relevant times, his deliberate

indifference claims are properly brought under the Fourteenth Amendment rather than

the Eighth Amendment, which applies to convicted prisoners. See City of Revere v. Mass.

Gen. Hosp., 463 U.S. 239 (1983); see also Martin v. Gentile, 849 F.2d 863 (4th Cir. 1988)

(applying the Fourteenth Amendment to an arrestee’s deliberate indifference claims).

However, the Fourth Circuit has long applied the Eighth Amendment deliberate

indifference standard to pretrial detainees’ deliberate indifference claims. See, e.g.,

Young v. City of Mt. Ranier, 238 F.3d 567, 575 (4th Cir. 2001); Martin, 849 F.2d at 863.

In Kingsley v. Hendrickson, the United States Supreme Court held that, to state an

excessive force claim, a pretrial detainee must only show that the force “purposefully or

knowingly used against him was objectively unreasonable” because, although prisoners

may not be punished cruelly or unusually, pretrial detainees may not be punished at all.

576 U.S. 389 (2015). Some circuits have held, in light of Kingsley, that an objective

reasonableness standard should apply in custodial contexts beyond excessive force.

See, e.g., Hardeman v. Curran, 933 F.3d 816 (7th Cir. 2019) (extending the objective

standard to conditions of confinement cases); Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir.

2017) (same); Castro v. City of Los Angeles, 833 F.3d 1060, 1069-70 (9th Cir. 2016) (en

banc) (extending the objective reasonableness standard to failure to protect claims). The

Fourth Circuit has not yet addressed this question. See, e.g., Duff v. Potter, 665 F. App’x

242, 244-45 (4th Cir. 2016) (applying the Kingsley standard to a detainee’s excessive

force claim but declining to disturb the district court’s ruling on plaintiff’s claim of deliberate

indifference to a serious medical need for procedural reasons). The Court will apply the

deliberate indifference standard in this case, as the relevant Fourth Circuit case law has

not been overruled and the Fourth Circuit has not expressed any intention to do so. See,

e.g., Shover v. Chestnut, 798 F. App’x 760, 761-62 (4th Cir. 2020) (applying the deliberate

indifference standard to a pretrial detainee’s medical claim without discussing Kingsley).

indifference” to the inmate’s health and safety under a subjective standard.

Wilson v. Seiter, 501 U.S. 294, 297-99 (1991).

Plaintiff alleges that Defendant Maxwell was deliberately indifferent to

his safety by failing to protect him from a dangerous inmate during lunch

service. Prison officials have a duty “to protect prisoners from violence at

the hands of other prisoners.” Farmer, 511 U.S. at 833 (quoting Cortes-

Quinoes v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). To obtain

relief on a § 1983 failure to protect claim, an inmate must show: (1) he is

incarcerated under conditions posing a substantial risk of serious harm; and

(2) the prison official had a deliberately indifferent state of mind. Id. at 834.

That is, the prison official must know of and disregard a substantial risk of

harm. Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004)

(quoting Farmer, 511 U.S. at 837).

Plaintiff has failed to state a plausible claim for failure to protect. While

he alleges that Defendant Maxwell knew that the inmate in cell 43 was

dangerous, he fails to allege sufficient facts that would give rise to a plausible

inference that Defendant Maxwell had a culpable state of mind. The crux of

this claim appears to be that Plaintiff faults Defendant Maxwell for moving

out of the way to avoid being struck by the inmate, which in turn caused

Plaintiff to fall. However, Defendant Maxwell had no constitutional duty to

place himself in danger of physical harm so that he would be struck instead

of Plaintiff. See Raynor v. Pugh, 817 F.3d 123, 128 (4th Cir. 2016) (in failure

to protect cases, “prison guards have no constitutional duty to intervene in

the armed assault of one inmate upon another when the intervention would

place the guards in danger of physical harm.”). Plaintiff’s allegations

suggest, at most, that Defendant Maxwell was negligent. However,

negligence does not rise to the level of deliberate indifference and is not a

basis for a § 1983 action. See Davidson v. Cannon, 474 U.S. 344, 347-48

(1986). Therefore, the deliberate indifference claim against Defendant

Maxwell for failing to protect Plaintiff from another inmate will be dismissed.

Plaintiff further alleges that Defendant Miller is liable for the lunch

incident due to his failure to properly train Defendant Maxwell. A supervisor

may be liable for failure to adequately train or supervise if he had actual or

constructive knowledge that his subordinate was engaged in conduct that

posed a pervasive and unreasonable risk of constitutional injury; the

supervisor’s response to that knowledge was deliberately indifferent to, or

tacitly authorized the alleged offensive practices; and there was an

affirmative causal link between the supervisor’s inaction and the particular

constitutional injury suffered by the plaintiff. See King v. Rubenstein, 825

F.3d 206, 223–24 (4th Cir. 2016); Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.

1994).

Plaintiff has failed to state a deliberate indifference claim against

Defendant Maxwell. His supervisory claim against Defendant Miller for

failing to adequately train and supervise Maxwell thus necessarily fails. See

generally Waybright v. Frederick Co, Md., 528 F.3d 199, 203 (4th Cir. 2008)

(“supervisors and municipalities cannot be liable under § 1983 without some

predicate ‘constitutional injury at the hands of the individual [state] officer,’ at

least in suits for damages.”). Therefore, the claim against Defendant Miller

will be dismissed.

Plaintiff also attempts to state a deliberate indifference claim against

Defendant Dodd for inadequate medical treatment. To state a claim for

deliberate indifference to a serious medical need, 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)). 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), overruled on other grounds by Farmer, 511

U.S. at 825.

Plaintiff has plausibly alleged that Defendant Dodd was deliberately

indifferent by failing to provide Plaintiff with any medical treatment despite

Plaintiff’s frequent complaints of severe and constant pain. This claim,

therefore, will be allowed to proceed.

Plaintiff seeks the appointment of counsel. [See Doc. 16 at 1]. There

is no absolute right to the appointment of counsel in civil actions such as this

one. Therefore, 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 and this

request will be denied.

Finally, Plaintiff has filed a Motion to Transfer Case to Another District.

[Doc. 17]. Plaintiff appears to allege that Judge Whitney made “prejudicial”

statements about Plaintiff’s litigation in another § 1983 lawsuit, Civil Case

No. 1:17-cv-00050, which he claims was dismissed based on falsified legal

documents and fraud on the court. Venue is correct in this Court and the

Plaintiff has stated no legitimate basis for transferring this case to another

district. See generally 28 U.S.C. §§ 1391, 1404. Moreover, Judge Whitney

is no longer assigned to this case. Even if this Motion were liberally

construed as one seeking the undersigned’s recusal, it would be denied.

Plaintiff has not filed an affidavit setting forth his reasonable belief that the

Court has a personal bias or prejudice against him or in favor of an adverse

party. See 28 U.S.C. § 144; United States v. Jones, 718 F. App’x 181, 184

(4th Cir. 2018) (a litigant’s disagreement with the district court’s rulings and

baseless allegations of fraud on the court did not warrant the district court’s

recusal). Nor is any basis for the Court’s disqualification present. See 28

U.S.C. § 455.

IV. CONCLUSION

In sum, Plaintiff’s medical deliberate indifference claim will pass initial

review against Defendant Dodd. Plaintiff’s remaining claims are dismissed.

IT IS, THEREFORE, ORDERED that Plaintiff’s Motion to Transfer

Case to Another District [Doc. 6] is DENIED.

IT IS FURTHER ORDERED that this matter shall proceed with respect

to Plaintiffs medical deliberate indifference claim against Defendant Dodd,

and the Plaintiff's remaining claims are DISMISSED.

The Clerk is directed to mail a summons form to Plaintiff for Plaintiff to

fill out and return for service of process on Defendant Dodd. Once the Court

receives the summons form, the Clerk shall then direct the U.S. Marshal to

effectuate service on Defendant Dodd. The Clerk is respectfully instructed

to note on the docket when the form has been mailed to Plaintiff.

IT IS SO ORDERED.

Signed: September 11, 2020

Martifi Reidinger ey

Chief United States District Judge Ale

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