Harding v. Schetter

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:20-cv-00340-MR

KEITH HARDING, )

)

Plaintiff, )

)

vs. )

)

) ORDER

)

FNU SCHETTER, et al., )

)

Defendants. )

___________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s

Complaint, filed under 42 U.S.C. § 1983, see 28 U.S.C. §§ 1915(e)(2) and

1915A. [Doc. 1]. Plaintiff is proceeding in forma pauperis. [Docs. 2, 6].

I. BACKGROUND

Pro se Plaintiff Keith Harding (“Plaintiff”) is a prisoner of the State of

North Carolina, currently incarcerated at Bertie Correctional Institution in

Windsor, North Carolina. Plaintiff filed this action on November 24, 2020,

pursuant to 42 U.S.C. § 1983, naming FNU Schetter, identified as an

employee of Marion Correctional Institution (“Marion”), and FNU Moody,

identified as an employee of and nurse at Marion, as Defendants in this

matter. [Doc. 1 at 2]. Plaintiff purports to sue these Defendants in their

individual and official capacities. [Id.]. Plaintiff alleges that these Defendants

violated his rights under the Eighth and Fourteenth Amendments and that

Defendant Moody committed medical malpractice in his care of Plaintiff. In

support of these claims, Plaintiff alleges as follows.

On December 25, 2019, between 6:00 p.m. and 7:00 p.m., Defendant

Schetter was escorting Plaintiff to the shower. Because Plaintiff was in the

Restrictive Housing Unit, he was handcuffed from behind at this time. [Doc.

1 at 3]. Halfway to the shower, Schetter ordered Plaintiff, who was walking

at a moderate pace, to slow down. [Id.]. Plaintiff replied that he was walking

at a normal pace. [Id.]. Then Plaintiff stopped walking “so that [he] wouldn’t

be seen as not complying.” [Id.]. Schetter then told Plaintiff that his shower

had been revoked and ordered Plaintiff to walk to his cell. Plaintiff persisted

in pleading his case, asking why his shower had been denied. [Id.].

Schetter, while gripping Plaintiff’s arm, threw Plaintiff face first into a nearby

wall and then slammed Plaintiff to the floor. [Id.]. Plaintiff suffered a swollen

lip, bleeding from his mouth, and swelling to his head. [Id.]. Plaintiff “never

showed any sign of aggression, nor did [he pose] any type of threat.” [Id. at

4].

Defendant Moody, a nurse, arrived at Plaintiff’s cell shortly thereafter

to examine Plaintiff. Plaintiff explained his injuries to Moody, who told Plaintiff

that he would be okay and told officers to get Plaintiff an ice pack. [Id. at 4].

Plaintiff was never brought an ice pack and was “left to suffer in pain with no

remedial medical assistance.” [Id.]. Overnight Plaintiff’s swelling increased

and caused “severe migraines” [sic]. [Id. at 5]. Plaintiff also experienced

difficulty eating over the next week and a half. [Id.]. On December 26, 2019,

at approximately 3:00 p.m., Plaintiff declared a medical emergency. Moody

arrived in response. Plaintiff told Moody that Plaintiff had a severe migraine

and that his swelling had increased. [Id.]. Moody replied that Plaintiff’s

injuries “must not be crucial” if Plaintiff was till able to talk. Moody left without

treating Plaintiff’s injuries. [Id.].

For relief, Plaintiff seeks compensatory and punitive damages. [Id. at

9]. Plaintiff also requests the Court to order Defendants to release video

footage from the December 25 and 26, 2019 incidents to the Court. [Id.].

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 “frivolous or malicious [or] fails to state a claim on which

relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, under § 1915A

the Court must conduct an initial review and identify and dismiss the

complaint, or any portion of the complaint, if it is frivolous, malicious, or fails

to state a claim upon which relief may be granted; or seeks monetary relief

from a defendant who is immune to such relief.

In its frivolity review, this 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

A. Official Capacity Claims

Plaintiff purports to sue Defendants, who are state officials, in their

individual and official capacities. [Id. at 2]. However, “a suit against a state

official in his or her official capacity is not a suit against the official but rather

is a suit against the official’s office.” Will v. Dep’t of State Police, 491 U.S.

58, 71 (1989). Because a state is not a “person” under § 1983, state officials

acting in their official capacities cannot be sued for damages thereunder.

Allen v. Cooper, No. 1:19-cv-794, 2019 WL 6255220, at *2 (M.D.N.C. Nov.

22, 2019). Furthermore, the Eleventh Amendment bars suits for monetary

damages against the State of North Carolina and its various agencies. See

Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir. 2003). As such,

Plaintiff’s claims against Defendants in their official capacities do not survive

initial review and will be dismissed.

B. Excessive Force

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 establish

an Eighth Amendment claim based on the use of excessive force, an inmate

must satisfy both an objective component–that the harm inflicted was

sufficiently serious–and a subjective component–that the prison official acted

with a sufficiently culpable state of mind. Williams v. Benjamin, 77 F.3d 756,

761 (4th Cir. 1996). In adjudicating an excessive force claim, the Court must

consider such factors as the need for the use of force, the relationship

between that need and the amount of force used, the extent of the injury

inflicted, and, ultimately, whether the force was “applied in a good faith effort

to maintain or restore discipline, or maliciously and sadistically for the very

purpose of causing harm.” Whitley, 475 U.S. at 320-21.

Here, taking Plaintiff’s allegations as true and giving Plaintiff the benefit

of every reasonable inference, the Court finds that his Eighth Amendment

claim against Defendant Schetter survives initial review as it is not clearly

frivolous.

C. Deliberate Indifference to a Serious Medical Need

Claims under 42 U.S.C. § 1983 based on an alleged lack of or

inappropriate medical treatment fall within the Eighth Amendment’s

prohibition against cruel and unusual punishment. Estelle v. Gamble, 429

U.S. 97, 104 (1976). To state a claim under the Eighth Amendment, a

plaintiff must show a “deliberate indifference to serious medical needs” of the

inmate. Id. “Deliberate indifference requires a showing that the defendants

actually knew of and disregarded a substantial risk of serious injury to the

detainee or that they actually knew of and ignored a detainee’s serious need

for medical care.” Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th

Cir. 2001) (citations omitted). “To establish that a health care provider’s

actions constitute deliberate indifference to a serious medical need, the

treatment must be so grossly incompetent, inadequate, or excessive as to

shock the conscience or to be intolerable to fundamental fairness.” Miltier v.

Beorn, 896 F.2d 848, 851 (4th Cir. 1990).

Allegations that might be sufficient to support negligence and medical

malpractice claims do not, without more, rise to the level of a cognizable §

1983 claim. Estelle, 429 U.S. at 106; Grayson v. Peed, 195 F.3d 692, 695

(4th Cir. 1999) (“Deliberate indifference is a very high standard—a showing

of mere negligence will not meet it.”). To be found liable under the Eighth

Amendment, a prison official must know of and consciously or intentionally

disregard “an excessive risk to inmate health or safety.” Farmer v. Brennan,

511 U.S. 825, 837 (1994); Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir.

1998). “[E]ven if a prison doctor is mistaken or negligent in his diagnosis or

treatment, no constitutional issue is raised absent evidence of abuse,

intentional mistreatment, or denial of medical attention.” Stokes v. Hurdle,

393 F. Supp. 757, 762 (D. Md. 1975), aff’d, 535 F.2d 1250 (4th Cir. 1976).

Taking Plaintiff’s allegations as true and giving Plaintiff the benefit of

every reasonable inference, Plaintiff’s claim against Defendant Moody for

deliberate indifference to Plaintiff’s serious medical needs under the Eighth

Amendment survives initial review as it is not clearly frivolous.

D. Fourteenth Amendment

Plaintiff purports to state claims against both Defendants for violation

of his rights under the Fourteenth Amendment. To prevail on a procedural

due process claim, an inmate must first demonstrate that he was deprived of

“life, liberty, or property” by governmental action. Bevrati v. Smith, 120 F.3d

500, 502 (4th Cir. 1997). Changes “in a prisoner’s location, variations of daily

routine, changes in conditions of confinement (including administrative

segregation), and the denial of privileges [are] matters which every prisoner

can anticipate [and which] are contemplated by his original sentence to

prison.” Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991); Slezak v. Evatt,

21 F.3d 590, 594 (4th Cir. 1994). To support a claim for violation of a

constitutional right under the due process clause, a plaintiff must show that

his confinement posed an atypical and significant hardship in relationship to

the ordinary incidents of prison life. See Wilkinson v. Austin, 545 U.S. 209

(2005). See also Hawkins v. Freeman, 195 F.3d 732, 749 (4th Cir. 1999)

(“There is no general liberty interest in being free of even the most arbitrary

and capricious government action; the substantive component of the due

process clause only protects from arbitrary government action that infringes

a specific liberty interest.”) (citations omitted).

Here, Plaintiff alleges that “[t]he conduct by Schetter violated

[Plaintiff’s] Fourteenth Amendment right to liberty and it did so without due

process, when [Plaintiff] was unable to defend himself.” [Doc. 1 at 6].

Plaintiff further alleges that Moody denial of medical treatment to Plaintiff

violated “[his] Fourteenth Amendment right, and it did so without due

process.” [Id. (emphasis in original)]. As such, it appears that Plaintiff

believes his Fourteenth Amendment rights were violated simply by virtue of

the alleged violations of his Eighth Amendment rights. Plaintiff’s allegations

here do not implicate due process concerns.

The Court will, therefore, dismiss Plaintiff’s Fourteenth Amendment

claims on initial review because Plaintiff has failed to state a claim upon

which relief may be granted.

E. Medical Malpractice

Plaintiff also purports to state a claim for medical malpractice against

Defendant Moody. Plaintiff, however, has not complied with Rule 9(j) of the

North Carolina Rules of Civil Procedure, which requires plaintiffs asserting

medical malpractice actions to obtain an expert review of “the medical care

and all medical records” before filing a lawsuit, and for a medical expert to

certify that. N.C. Gen. Stat. § 1A-1, Rule 9(j). The Court will dismiss this

claim without prejudice. The Court will, however, allow Plaintiff the

opportunity to amend his Complaint, as further directed below. Should

Plaintiff wish to pursue a claim for medical malpractice, he must comply with

Rule 9(j).

F. Motion for Video Footage

Plaintiff moves the Court to order Defendants to release video footage

of the alleged incidents to the Court. First, the Court has not yet entered a

Pretrial Order and Case Management Plan (“PTOCMP”) in this case. As

such, any requests for discovery are premature. Once the Court has entered

the PTOCMP in this case, the Plaintiff may serve discovery requests on

Defendants. Second, discovery requests should not be filed with the Court.

Discovery materials should only be exchanged between the parties and only

after the Court has entered the PTOCMP. All future discovery requests must

be served on the opposing party. As such, Plaintiff’s motion for video footage

will be denied.

IV. CONCLUSION

For the reasons stated herein, Plaintiff’s Eighth Amendment claims

against both Defendants in their individual capacities survive initial review.

Plaintiff’s claim against Defendant Moody for medical malpractice and

Plaintiff’s Fourteenth Amendment claims are dismissed without prejudice to

Plaintiff’s ability to file an amended complaint in accordance with the terms

of this Order. Plaintiff’s official capacity claims are dismissed with 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, the matter will proceed against Defendants on

Plaintiff’s Eighth Amendment claims only.

ORDER

IT IS, THEREFORE, ORDERED that:

(1) The excessive force claim against Defendant Schetter survives

initial review;

(2) The deliberate indifference claim against Defendant Moody

survives initial review;

(3) The official capacity claims against both Defendants are

dismissed with prejudice;

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

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

(5) 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 so

amend his Complaint, the matter will proceed against Defendants as

provided in this Order.

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

1983 form.

IT IS SO ORDERED.

March 9, 2021

Martifi Reidinger □□

Chief United States District Judge alley

12