Moore v. Fox

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:20-cv-00359-MR

DWIGHT WAYNE MOORE, JR., )

)

Plaintiff, )

)

vs. )

)

FNU FOX, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

[Doc. 1] and on the Plaintiff’s Letter [Doc. 10]. The Plaintiff is proceeding in

forma pauperis. [Doc. 6].

I. BACKGROUND

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

U.S.C. § 1983 addressing an incident that allegedly occurred at the Foothills

Correctional Institution (“Foothills C.I.”). He names as Defendants: the

Foothills C.I.; FNU Fox and FNU McLean, Foothills C.I. night shift

correctional officers; “Mr. Webb”; and “Mr. Mace”.

In the Complaint, the Plaintiff alleges that around 8:49 p.m. on October

25, 2020, he was assaulted by two other inmates. [Doc. 1 at 5]. He alleges

that “officers” came in and sprayed the Plaintiff, and nobody else, with pepper

spray which “gave one inmate the opportunity to stand up and strike [Plaintiff]

with his hands and feet.” [Id.]. He alleges that “officers failed to follow policy

and protect [the Plaintiff] from [his] long term injuries.”1 [Id.]. The Plaintiff

alleges that the incident was witnessed by Defendants Fox and McLean, as

well as other inmates. [Id.]. The Plaintiff alleges that the assault caused a

loss of vision, a concussion, major headaches, and a torn nerve in his eye.

[Id.]. The Plaintiff seeks damages and “help with [his] medical bills.” [Id.].

In a Letter docketed on April 7, 2021, the Plaintiff asks the Court

whether he can “cancel the lawsuit” and cease making payments towards

the filing fee. [Doc. 10 at 1].

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. §

1 The Plaintiff appears to suggest that he did not complete the Administrative Remedy

Procedure with regards to this incident, stating that he “did not reach the highest level of

the grievance process” because Mr. Mace came to talk to him once about the incident but

never followed up with the Plaintiff. [Doc. 1 at 7]; [see Doc. 1-1 at 2] (November 6, 2020

Administrative Remedy Procedure). However, the Court declines to address exhaustion

sua sponte. See generally Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017).

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).

The Plaintiff attempts to name the Foothills C.I. as a Defendant.

However, “neither a state nor its officials acting in their official capacities are

‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58,

71 (1989). Therefore, the North Carolina Department of Corrections

(“NCDPS”) and its facilities are not “persons” under § 1983. See Fox v.

Harwood, 2009 WL 1117890, at *1 (W.D.N.C. April 24, 2009). The Plaintiff’s

claims against Foothills C.I. are therefore dismissed with prejudice.

The Plaintiff names “Mr. Webb” and “Mr. Mace” as Defendants.

However, he does not explain who these individuals are or describe how they

violated his constitutional rights under the color of state law. The only

allegation about Defendant Mace is that he came to speak to the Plaintiff

once about the incident, and the Plaintiff makes no factual allegations about

Defendant Webb whatsoever. The claims against Defendants Webb and

Mace are thus too vague and conclusory to proceed. See 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, the claims

against Defendants Webb and Mace are dismissed for failure to state a claim

upon which relief can be granted.

The Plaintiff appears to allege that Defendants Fox and McLean failed

to follow NCDPS policy and protect him from a violent attack by other

inmates.

Prison officials 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)). To obtain relief on a § 1983 failure to protect claim, an inmate must

show that he is incarcerated under conditions posing a substantial risk of

serious harm and that the prison official had a deliberately indifferent state

of mind. Id. at 834. “Deliberate indifference is a very high standard – a

showing of mere negligence will not meet it.” Grayson v. Peed, 195 F.3d

692, 695 (4th Cir. 1999) (citing Estelle, 429 U.S. at 105-06); see generally

Davidson v. Cannon, 474 U.S. 344, 347-48 (1986) (negligent failure to

protect a prisoner from another inmate cannot support a § 1983 claim).

The Plaintiff alleges only that Defendants Fox and McLean witnessed

the incident where he was attacked by other inmates and pepper sprayed.

It is not clear that they are the “officers” who allegedly administered the

pepper spray or were otherwise personally involved in the incident. Even

giving the Plaintiff the very generous inference that Defendants Fox and

McLean are the officers who applied the pepper spray, the allegations

demonstrate, at most, a negligent application of pepper spray. Such an

allegation is insufficient to support a failure to protect claim. Therefore, the

failure to protect claims against Defendants Fox and McClean are dismissed.

The Plaintiff’s claim that Defendants Fox and McClean violated

NCDPS policy is also insufficient to proceed. A claim that prison officials

have not followed their own policies or procedures does not, by itself, amount

to a constitutional violation. See Riccio v. Cnty. of Fairfax, Va., 907 F.2d

1459, 1469 (4th Cir. 1990) (holding that if state law grants more procedural

rights than the Constitution requires, a state’s failure to abide by that law is

not a federal due process issue); Belcher v. Oliver, 898 F.2d 32, 36 (4th Cir.

1990) (“[F]ailure to follow procedures established for the general protection

and welfare of inmates does not constitute deliberate disregard for the

medical needs of a particular [inmate].”). Thus, the Plaintiff’s claim that the

Defendants Fox and McClean violated NCDPS policy will be dismissed for

failure to state a claim upon which relief can be granted.

The Court will briefly address the Plaintiff’s Letter in which he

expresses interest in “cancel[ling]” this action. [Doc. 10]. A plaintiff may

voluntarily dismiss an action without a court order by filing a notice of

dismissal any time before the adverse party serves him with an answer or a

motion for summary judgment, whichever occurs first. See Fed. R. Civ. P.

41(a)(1)(i). Such dismissals are without prejudice unless the notice of

dismissal states otherwise. Fed. R. Civ. P. 41(a)(1)(B). The Plaintiff is

cautioned, however, that voluntarily dismissing this case will not absolve him

from paying the balance of the filing fee. See 28 U.S.C. § 1915(b)(1) (“if a

prisoner brings a civil action … in forma pauperis, the prisoner shall be

required to pay the full amount of a filing fee….”).

IV. CONCLUSION

In sum, Plaintiff has failed to state a claim against any Defendant. The

claims against the Foothills C.I. are dismissed with prejudice and the

remaining claims are dismissed without prejudice. The Court will allow

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

its deficiencies and properly state a claim upon which relief can be granted.

Should Plaintiff fail to timely amend his Complaint, this action will be

dismissed without prejudice and without further notice to Plaintiff.

IT IS, THEREFORE, ORDERED that the claims against the Foothills

C.I. are DISMISSED WITH PREJUDICE and the claims against Defendants

Fox, McClean, Webb, and Mace are DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that 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, this action will be dismissed without

prejudice and without further notice to Plaintiff.

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

1983 complaint form.

IT IS SO ORDERED.

Signed: April 15, 2021

5 a wail

< Reidinger Ly

Chief United States District Judge wld