Davis v. Gossnell

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:19-cv-00689-MR

TREY DAVIS, )

)

Plaintiff, )

)

vs. )

)

FNU GOSNELL, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

Complaint [Doc. 16].1 Plaintiff is proceeding in forma pauperis. [Doc. 12].

I. BACKGROUND

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

U.S.C. § 1983, complaining about incidents that allegedly occurred when he

was a pretrial detainee at the Gaston County Jail. He names as Defendants:

the Gaston County Sheriff’s Department; Allen Cloninger, the Gaston County

Sheriff; and the following Gaston County Sheriff Department employees:

1 The Complaint was filed on December 9, 2019. See Houston v. Lack, 487 U.S. 266,

276 (1988) (establishing the prisoner mailbox rule); Lewis v. Richmond City Police Dep’t,

947 F.2d 733 (4th Cir. 1991) (applying prisoner mailbox rule to § 1983 case). Plaintiff filed

the Amended Complaint before the Complaint was screened for frivolity.

Deputy Gosnell, Deputy Grousch, Deputy Gomez, Deputy Byerly, Deputy

Thompson, Captain Maxwell, and Sergeant Morehouse.

Plaintiff alleges that he was a pretrial detainee on 23-hour solitary

confinement when Officer Reynolds2 turned off the telephone during

Plaintiff’s recreation time on December 18, 2016. Plaintiff alleges that he

asked to speak to the sergeant on duty and voluntarily returned to his cell at

Officer Reynolds’ request but was nevertheless told that he would receive

disciplinary sanctions for refusing to lock down. Plaintiff alleges that he again

asked to speak to the sergeant but Officer Reynolds refused and continued

to antagonize him.

Plaintiff alleges that Sergeant Stewart3 and Defendants Grousch,

Gomez, Gosnell, Byerly and Morehouse later came to Plaintiff’s cell where

they found water coming from underneath the door. Officers shut off the

water supply, secured Plaintiff, and entered Plaintiff’s cell where Defendants

Gosnell and Byerly restrained Plaintiff, and Defendant Gomez punched

Plaintiff repeatedly although Plaintiff was not resisting. Plaintiff alleges that,

when he attempted to pull his arms free to shield himself, Defendants

Gosnell, Byerly, and others struck Plaintiff with fists and knees. Plaintiff was

2 Officer Rreynolds is not named as a Defendant.

3 Sergeant Stewart is not named as a Defendant.

eventually handcuffed and led out of the cell when Defendant Gomez hit him

repeatedly with a closed fist.

Plaintiff alleges that he was being escorted down a corridor when he

stopped and attempted to speak with Defendant Morehouse, who was

behind him. Plaintiff alleges that Defendant Morehouse tackled, struck, and

choked Plaintiff until Morehouse was restrained by other officers. Plaintiff

alleges that he was handcuffed and placed in a holding cell and that he again

asked to speak to the captain.

Plaintiff alleges that Defendants Grousch and Thompson entered the

cell and again assaulted him. Plaintiff alleges that he began kicking the cell

door and requesting to speak to superior officers when Defendants Maxwell

arrived and ordered that Plaintiff be placed in a restraint chair. Defendant

Grousch allegedly entered the cell, choked the restrained Plaintiff, and

placed Plaintiff in a restraint chair. Plaintiff “bucked” and Defendant Grousch

repeatedly punched Plaintiff’s face while Plaintiff was partially restrained.

[Doc. 16 at 18]. Plaintiff alleges that Defendants Maxwell and Thompson

joined Grousch in punching Plaintiff and that Maxwell eventually restrained

Grousch.

Plaintiff alleges that he was left in the restraint chair in a corridor where

he suffered several seizures, became unresponsive, and was provided no

medical attention. Plaintiff alleges that unnamed officers came to check him

hours later, said that Plaintiff was “faking it,” and left him in the restraint chair

without medical attention. [Doc. 16 at 19]. Plaintiff alleges that unnamed

officers came to check on him a second time hours later, found Plaintiff

unresponsive, removed him from the restraint chair, and left him on the floor

of a holding cell.

Plaintiff alleges that officers from the next shift found Plaintiff

unresponsive in the cell and summoned medical staff. Plaintiff was taken to

the local hospital where he was given an MRI and x-rays and was told that

he had a broken nose.

Plaintiff alleges that he was returned to the Jail on 23-hour lockdown

solitary confinement with the loss of canteen and phone privileges. He

alleges that he remained at the Jail on 23-hour lockdown for the next 13

months, with frequent stints of 71-hour lockdown solitary confinement, as a

result of the December 18 incident.

As injury, Plaintiff alleges that he had major swelling of the face and

head, abrasions and contusions, several seizures, and a concussion with

temporary fits of paralysis. He seeks $12,000,000 in compensatory and

punitive damages.

II. STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must

review the Amended 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 Amended

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

Pretrial detainees are protected from the use of excessive force by the

Fourteenth Amendment. See Graham v. Connor, 490 U.S. 386, 395 n.10

(1989) (“protects a pretrial detainee from the use of excessive force that

amounts to punishment.”). To state an excessive force claim, a pretrial

detainee must show only that the force “purposely or knowingly used against

him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389

(2015).

Plaintiff has stated plausible claims for the use of excessive force

against Defendants Byerly, Gomez, Gosnell, Grousch, Maxwell, Morehouse,

and Thompson, and such claims appear to be timely.

The Amended Complaint further alludes to the denial of adequate

medical care, the imposition of unwarranted disciplinary charges, and the

conditions of his solitary confinement. However, these claims are too vague

and conclusory to proceed in that Plaintiff has failed to identify the

individual(s) against whom he intended to assert such claims or adequately

describe how his constitutional rights were allegedly violated. See generally

Fed. R. Civ. P. 8(a)(2) (short and plain statement is required); Simpson v.

Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory allegations, unsupported

by specific allegations of material fact are not sufficient); Dickson v. Microsoft

Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege facts,

directly or indirectly, that support each element of the claim). Therefore,

these claims will be dismissed without prejudice.

Plaintiff names the Gaston County Sheriff’s Department as a

Defendant. “Under North Carolina law, police departments cannot be sued

as entities.” Smith v. Mundy, 848 F.3d 248, 256-57 (4th Cir. 2017) (citing

Ostwalt v. Charlotte-Mecklenburg Bd. of Educ., 614 F.Supp.2d 603, 607

(W.D.N.C. 2008)); see, e.g., Wesley v. Charlotte-Mecklenburg County Police

Dep’t, 2020 WL 5822216 (W.D.N.C. Sept. 20, 2020) (dismissing claims

against Charlotte-Mecklenburg Police Department, Mecklenburg County

Sheriff’s Office, and Mecklenburg County Jail because these entities lack the

legal capacity to be sued). Plaintiff’s claims against the Gaston County

Sheriff’s Department will therefore be dismissed.

Plaintiff has also named Sheriff Cloninger as a Defendant. However,

Plaintiff has failed to allege that Sheriff Cloninger had any personal

involvement in the incidents at issue and thus failed to state a claim against

Cloninger in his individual capacity. See generally Kentucky v. Graham, 473

U.S. 159, 166 (1985) (for personal liability, “it is enough to show that the

official, acting under color of state law, caused the deprivation of a federal

right.”). Nor has Plaintiff alleged that a policy or custom was a moving force

behind the alleged violation of federal law or that Cloninger tacitly approved

of, or was deliberately indifferent to, his subordinates’ allegedly

unconstitutional conduct. See generally King v. Rubenstein, 825 F.3d 206,

223–24 (4th Cir. 2016) (discussing supervisory and official-capacity liability).

Plaintiff has failed to state a plausible claim against Defendant Cloninger

under any theory, and therefore, the claims against him will be dismissed

without prejudice.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s claims for the alleged use

of excessive force against Defendants Byerly, Gosnell, Grousch, Gomez,

Thompson, Maxwell, and Morehouse survive initial review under 28 U.S.C.

§ 1915(e)(2) as they are not clearly frivolous. The claims against the Gaston

County Sheriff’s Department will be dismissed with prejudice. The remaining

claims will be dismissed without prejudice. The Court will allow Plaintiff thirty

(30) days to amend his Complaint, if he so chooses, to correct the

deficiencies identified in this Order and to otherwise properly state a claim

upon which relief can be granted. Any Amended Complaint will be subject

to all timeliness and procedural requirements and will supersede the

Complaint. Piecemeal amendment will not be permitted. Should Plaintiff fail

to timely amend his Complaint in accordance with this Order, Defendant

Cloninger will be dismissed from this case without further notice to Plaintiff.

IT IS, THEREFORE, ORDERED that:

(1) The excessive force claims against Defendants Byerly, Gosnell,

Grousch, Gomez, Thompson, Maxwell, and Morehouse have passed initial

review;

(2) The claims against the Gaston County Sheriffs Department will

be dismissed with prejudice;

(3) The remaining claims are dismissed without prejudice for failure

to state a claim upon which relief can be granted; and

(4) The Plaintiff shall have thirty (30) days in which to amend the

Complaint in accordance with the terms of this Order. If Plaintiff fails to

amend the Complaint in accordance with this Order and within the time limit

set by the Court, Defendant Cloninger will be dismissed from this case

without further notice to Plaintiff.

The Clerk is respectfully instructed to mail Plaintiff a blank prisoner §

1983 complaint form.

IT IS SO ORDERED.

Signed: January 25, 2021

Ct ey

Chief United States District Judge AS