Marshall v. North Carolina Department of Public Safety

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:20-cv-00214-MR

DANTE MARSHALL, )

)

Plaintiff, )

)

vs. )

)

NORTH CAROLINA DEPARTMENT )

OF PUBLIC SAFETY, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

[Doc. 1]. Plaintiff is proceeding in forma pauperis. [Doc. 6].

I. BACKGROUND

Pro se incarcerated Plaintiff filed this civil rights action pursuant to 42

U.S.C. § 1983, complaining about incidents that allegedly occurred at the

Mountain View Correctional Institution (Mountain View CI). He names as

Defendants: the North Carolina Department of Public Safety (NCDPS); and

Tyler McKinney and Cody Hughes, who are both correctional officers.

Plaintiff alleges that, on November 21, 2018, Defendants Hughes and

McKinney “physically, verbally, and mentally abused [him]” by pushing him

around, roughhousing, and calling him names, including racial slurs. [Doc.

1 at 5]. He further alleges that both Defendants “intentionally got rid of”

Plaintiff’s personal property, including hygiene items, irreplaceable personal

items, and religious items. Plaintiff alleges that he was placed in segregation

following the incident. Plaintiff alleges that he then wrote a grievance and

filed this lawsuit, which resulted in Defendants attempting to press criminal

charges and “prolong [his] time.” [Doc. 1 at 6]. Plaintiff further alleges that

Defendants falsely tried to label him as a rapist and informant to “incite

violence” against him by other inmates, which has led to physical altercations

with other inmates. [Doc. 1 at 6-7].

Plaintiff did not sustain any physical injury but alleges that he sees a

psychiatrist monthly because he is worried about the potential charges and

the possibility of future inmate attacks.

Plaintiff seeks nominal, punitive, and compensatory damages.

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).

Here, Plaintiff attempts to assert claims against NCDPS under § 1983.

The Eleventh Amendment bars suits directly against a state or its agencies,

unless the state has waived its immunity or Congress has exercised its

power under § 5 of the Fourteenth Amendment to override that immunity.

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989). Congress has

not imposed § 1983 liability upon states, and the state of North Carolina has

done nothing to waive its immunity. Bright v. McClure, 865 F.2d 623, 626

(4th Cir. 1989) (citing McConnell v. Adams, 829 F.2d 1319, 1328 (4th Cir.

1987)). As such, Plaintiff’s claims against NDCPS are barred, and they will

be dismissed with prejudice.

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). A prison official violates the Eighth Amendment only when

two requirements are met. First, the deprivation alleged must be objectively

“sufficiently serious,” Wilson v. Seiter, 501 U.S. 294, 298 (1991), resulting in

the denial of “the minimal civilized measure of life’s necessities,” Rhodes v.

Chapman, 452 U.S. 337, 347 (1981). The second requirement is that a

prison official must have a “sufficiently culpable state of mind.” Wilson, 501

U.S. at 297, 302-03; see Hudson v. McMillian, 503 U.S. 1, 5, 8 (1992).

For excessive force claims, the objective component asks whether the

force applied was sufficiently serious to establish a cause of action. Brooks

v. Johnson, 924 F.3d 104, 112 (4th Cir. 2019). 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. However, “[v]erbal abuse alone

does not violate a constitutional right.” Moody v. Grove, 885 F.2d 865 (4th

Cir. 1989) (unpublished) (citing Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.

1979)). Prison officials also have a duty “to protect prisoners from violence

at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833

(1994) (quoting Cortes-Quinoes v. Jimenez-Nettleship, 842 F.2d 556, 558

(1st Cir. 1988)).

Plaintiff’s allegations of roughhousing and insulting language, while

offensive, are not objectively sufficiently serious to implicate the Eighth

Amendment. However, liberally construing the Complaint, Plaintiff has

sufficiently alleged that Defendants deliberately exposed him to a substantial

risk of attack by other inmates – which has come to pass – by spreading

false rumors that he is a rapist and informant. This plausible Eighth

Amendment claim will be permitted to proceed.

The Fourteenth Amendment’s Due Process Clause provides that no

person shall be deprived of “life, liberty, or property, without due process of

law.” U.S. Const. Amend XIV. The first inquiry in any due process challenge

is whether the plaintiff has been deprived of a protected interest in property

or liberty that was accomplished by state action. Tigrett v. The Rector and

Visitors of the Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002); Stone v. Univ.

of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988). Where a state

employee’s random, unauthorized act deprives an individual of property,

either negligently or intentionally, the individual is relegated to his state post-

deprivation process, so long as the State provides an adequate post-

deprivation remedy. Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v.

Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniels v.

Williams, 474 U.S. 327 (1986)). Under North Carolina law, an action for

conversion will lie against a public official who wrongfully deprives an owner

of his property by an unauthorized act. Gallimore v. Sink, 27 N.C.App. 65,

67, 218 S.E.2d 181, 182 (1975). North Carolina’s post-deprivation remedies

are adequate. See Wilkins v. Whitaker, 714 F.2d 4, 6 (4th Cir. 1983) (due

process satisfied where North Carolina tort law provides an adequate

avenue for relief for state prisoner).

Plaintiff appears to allege that his property loss resulted from random,

unauthorized action rather than an established state procedure. Adequate

post-deprivation remedies exist for Plaintiff’s alleged property loss, so there

is no legal theory which would support this claim. See, e.g., Smith v. Ledford,

2006 WL 1431666 at *2 (W.D.N.C. May 22, 2006), aff’d, 203 F. App’x 484

(4th Cir. 2006) (dismissing plaintiff’s claim that jail administrator confiscated

his personal property upon his departure from the jail and refused to return

it, because plaintiff had an adequate post-deprivation remedy for

conversion). Therefore, Plaintiff’s claim that Defendants disposed of his

personal property will be dismissed.

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). 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). In order to state a colorable retaliation claim under §

1983, a plaintiff must allege: “(1) []he engaged in protected First Amendment

activity, (2) the defendant[] took some action that adversely affected [his]

First Amendment rights, and (3) there was a causal relationship between

[his] protected activity and the defendant[’s] conduct.” Martin v. Duffy, 858

F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors & Visitors of

George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). 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.” Adams v. Rice, 40 F.3d 72, 74

(4th Cir. 1994).

Plaintiff appears to allege that he incurred prison disciplinary sanctions

as a result of his own actions. This claim appears to be barred by Heck v.

Humphrey, 512 U.S. 477 (1994). In Heck, the United States Supreme Court

held as follows:

[I]n order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence

invalid, a § 1983 plaintiff must prove that the conviction and

sentence has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A

claim for damages bearing that relationship to a conviction or

sentence that has not been so invalidated is not cognizable

under § 1983. Thus, when a state prisoner seeks damages in a

§ 1983 suit, the district court must consider whether a judgment

in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence; if it would, the complaint must be

dismissed unless the plaintiff can demonstrate that the conviction

or sentence has already been invalidated. But if the district court

determines that the plaintiff’s action, even if successful, will not

demonstrate the invalidity of any outstanding criminal judgment

against the plaintiff, the action should be allowed to proceed, in

the absence of some other bar to the suit.

Id. at 485-87 (footnotes omitted; emphasis added). In Edwards v. Balisok,

520 U.S. 641 (1997), the Supreme Court extended the Heck rule to claims

alleging constitutional deficiencies in prison disciplinary proceedings that

have resulted in the loss of good time credits.

Plaintiff appears to allege that he received disciplinary sanctions,

including segregation, as a result of the incident at issue. Success on the

merit of such a claim would necessarily imply the invalidity of his disciplinary

conviction. See, e.g., Pierce v. Freeman, 121 F.3d 699 (4th Cir. 1997)

(prisoner’s claims that he was not allowed to present witnesses in his

defense at the disciplinary hearing and that his decision-maker was acting in

a biased and retaliatory manner are “of the sort that, if proven, would imply

the invalidity of the prisoner’s deprivation and are consequently barred under

the rule announced in Heck.”). Plaintiff has not alleged that the disciplinary

conviction has been reversed or otherwise invalidated. Therefore, this claim

appears to be barred by Heck and it is dismissed without prejudice.

Plaintiff further appears to allege that Defendants retaliated against

him by initiating a criminal prosecution. To the extent that Plaintiff is asking

the Court to intercede into pending state court proceedings, the Court

declines to do so. In Younger v. Harris, 401 U.S. 37 (1971), the United States

Supreme Court held that abstention is proper in federal court when (1) there

is an ongoing state court proceeding; (2) the proceeding implicates important

state interests; and (3) the plaintiff has an adequate opportunity to present

the federal claims in the state proceeding. Emp’rs Res. Mgmt. Co. v.

Shannon, 65 F.3d 1126, 1134 (4th Cir. 1995). Plaintiff will have the

opportunity to raise any allegations of wrongdoing in the criminal

proceedings. Therefore, to the extent that Plaintiff is seeking relief with

regards to a pending criminal prosecution, it appears that Younger

abstention applies. Accordingly, this claim is dismissed without prejudice.

IV. CONCLUSION

In sum, Plaintiff has stated an Eighth Amendment claim against

Defendants McKinney and Hughes for inciting attacks by other inmates. The

Court will dismiss Defendant NCDPS with prejudice and the remaining

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 Defendants McKinney and Hughes, who are alleged to be current or

former employees of NCDPS.

IT IS, THEREFORE, ORDERED that Plaintiff’s claims against the

North Carolina Department of Public Safety are DISMISSED WITH

PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff’s § 1983 claims against

Defendants McKinney and Hughes for violation of his Eighth Amendment

rights by inciting attacks by other inmates have passed initial review. 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 Defendants McKinney and

Hughes, who are alleged to be current or former employees of NCDPS.

IT IS FURTHER ORDERED that the other claims asserted by Plaintiff

against Defendants McKinney and Hughes are DISMISSED WITHOUT

PREJUDICE.

The Clerk of Court is 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: November 11, 2020

Martifi Reidinger ee

Chief United States District Judge AS

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