# Marshall v. North Carolina Department of Public Safety

> District Court, W.D. North Carolina · November 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10256468

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** November 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10256468. Public record. Not legal advice.