Stroud v. Tapp

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:20-cv-00226-MR

DOMINIC STROUD, )

)

Plaintiff, )

)

vs. )

)

FNU TAPP, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

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

The pro se Plaintiff filed the Complaint pursuant to 42 U.S.C. § 1983

addressing incidents that allegedly occurred at the Marion Correctional

Institution (“Marion C.I.”), where he is presently incarcerated. [Doc. 1]. He

names as Defendants the following Marion C.I. employees: FNU Tapp, a

unit manager; and FNU Truax and FNU Stidam,1 who are both correctional

officers.

1 While the Plaintiff refers to this Defendant as “Stidam” in the caption of the case, he

refers to the Defendant alternatively as “Stidham” and “Stadhim” in the body of the

Complaint. [See Doc. 1 at 8]. The name appears here as the Plaintiff presented it in the

caption.

In the Complaint, the Plaintiff alleges that at around 2:00 p.m. on July

16, 2019, he was approached by Defendants Tapp, Stidam, and Truax

regarding a cell search they had conducted. The Plaintiff was upset that

some family photographs were confiscated and that he was not present for

the cell search, which he believed to violate prison policy.2 After “words were

exchanged” between the Plaintiff and Defendant Tapp, Defendant Stidam

pulled out his mace but Tapp told Stidam to “stand down” and that everything

was under control. [Doc. 1 at 8]. The Plaintiff alleges that he calmly turned

away to go lock down in his cell without showing any signs of threats or anger

but Defendant Stidam pepper sprayed him anyway. The Plaintiff was

“partially blind, fearing for [his] life, only thinking [to] protect [himself]” and

“started swinging wildly.” [Id.]. The Plaintiff alleges that he was then tased

and submitted to cuffs and foot restraints. While lying face-down on the floor

in full restraints, the Plaintiff heard a voice saying “you want to hit me boy,”

then felt his hair pulled, face slammed into the floor repeatedly, tased again,

stomped on the back of his head, and the taser attachment was ripped from

his side and back. The Plaintiff was placed on his feet and was dragged to

segregation. [Id.]. Along the way, the Plaintiff alleges that he was rammed

2 The Plaintiff does not appear to assert a claim regarding the search of his cell or for the

confiscation of his photographs.

into entrances and windows and then he was thrown headfirst into a filthy

shower while in full restraints with open wounds to his eye, ear, side, back,

and arm. The Plaintiff alleges that “the officers” never completed an incident

report for the use of force.3 [Id. at 9].

The Plaintiff alleges that a nurse came to check on the Plaintiff while

he was in the shower. The Plaintiff still had mace in his eyes so the nurse

said that she would come back once the Plaintiff was stable, however, she

never returned. [Id.].

After the shower, the Plaintiff was escorted to a cell in segregation. He

was not given dinner and went without food until breakfast at 4:30 the next

morning. The Plaintiff alleges that he was also deprived of bed linens,

clothes, disinfectant or cleaning supplies during that time. He alleges that

his open wounds “could have le[d] to infections or diseases.” [Id.].

The Plaintiff seeks damages for pain and suffering and injunctive relief.

[Id. at 5].

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

3 The Plaintiff fails to identify the officers to whom this allegation refers.

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).

A. Excessive Force

The Plaintiff alleges that Defendants Stidam pepper sprayed him

without justification, and that he was tased and beaten while he was fully

restrained.

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). “An inmate’s Eighth Amendment excessive force claim

involves both an objective and a subjective component.” Brooks v. Johnson,

924 F.3d 104, 112 (4th Cir. 2019). “The objective component asks whether

the force applied was sufficiently serious to establish a cause of

action.” Id. 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.

The Plaintiff has stated a plausible claim that Defendant Stidam used

excessive force by pepper spraying him without justification. Liberally

construing the allegations, the Plaintiff has also stated a plausible claim

against Defendants Stidam and Tapp for the beating that allegedly followed.

However, the allegations are too vague and conclusory to state a plausible

claim against Defendant Truax. The Plaintiff alleges only that Defendant

Truax was present when the Defendants confronted the Plaintiff after the cell

search. The Plaintiff has not alleged sufficient facts to plausibly suggest that

Defendant Truax was in a position to intervene, or was even present, when

the Plaintiff was pepper sprayed and beaten. Therefore, Plaintiff’s excessive

force claim against Defendants Stidam and Tapp will be permitted to proceed

but the claim against Defendant Truax is dismissed without prejudice.

B. Deliberate Indifference to a Serious Medical Need

The Plaintiff alleges that an unnamed nurse was deliberately indifferent

to a serious medical need because she “never came back to see [him]” after

he was allegedly pepper sprayed and beaten. [Doc. 1 at 5].

To state a claim for deliberate indifference to a serious medical need,

a plaintiff must show that he had serious medical needs and that the

defendant acted with deliberate indifference to those needs. Heyer v. United

States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (citing Iko v.

Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). A “serious medical need” is “one

that has been diagnosed by a physician as mandating treatment or one that

is so obvious that even a lay person would easily recognize the necessity for

a doctor's attention.” Iko, 535 F.3d at 241 (internal quotation marks omitted).

To constitute deliberate indifference to a serious medical need, “the

treatment [a prisoner receives] must be so grossly incompetent, inadequate,

or excessive to shock the conscience or to be intolerable to fundamental

fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled on

other grounds by Farmer v. Brennan, 511 U.S. 825 (1994).

This claim is insufficient to proceed for several reasons. First, the

nurse at issue has not been named as a Defendant. This failure renders

Plaintiff’s allegations against her nullities. Fed. R. Civ. P. 10(a) (“The title of

the complaint must name all the parties”); see, e.g., Londeree v. Crutchfield

Corp., 68 F.Supp.2d 718 (W.D. Va. Sept. 29, 1999) (granting motion to

dismiss for individuals who were not named as defendants in the compliant

but who were served). Even if the nurse were properly named as a

Defendant, however, the deliberate indifference claim against her would still

be dismissed. The Plaintiff alleges that he was allowed a shower after he

was pepper sprayed and that he had open wounds to his eye, ear, side, back,

and arm. However, these bare, conclusory allegations are insufficient to

demonstrate that he had a serious medical need. Moreover, the Plaintiff has

failed to allege that the nurse’s failure to return and examine him was due to

deliberate indifference rather than mere negligence. Therefore, the

deliberate indifference claim against the unnamed nurse is dismissed without

prejudice.

C. Conditions of Confinement

The Plaintiff appears to allege that he was subjected to unconstitutional

conditions of confinement in that he was placed in a dirty cell while he had

open wounds, that he lacked bed linens, clothes, disinfectant, or cleaning

supplies, and that he missed one evening meal.

The Eighth Amendment protects prisoners from inhumane conditions

of confinement. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996).

“Prison conditions may be harsh and uncomfortable without violating the

Eighth Amendment prohibition against cruel and unusual punishment.”

Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997). Rather, extreme

deprivations are required, and “only those deprivations denying the minimal

civilized measure of life’s necessities are sufficiently grave to form the basis

of an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9

(1992) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal quotation

omitted)). Further, a plaintiff must allege and prove facts sufficient to support

a claim that prison officials knew of and disregarded a substantial risk of

serious harm. See Farmer, 511 U.S. at 847.

This claim is too vague to proceed in that the Plaintiff fails to identify

the Defendant(s) who allegedly placed him in a dirty cell after his

decontamination shower. Further, the conditions about which the Plaintiff

complains are not sufficiently serious. The Plaintiff alleges that he was

without cleaning supplies, clothing, and bed linens between the afternoon of

July 16, 2019 until about 4:30 a.m. the following morning. The conditions at

issue for this relatively brief period are not sufficiently grave to implicate the

Eighth Amendment. Nor does missing a single meal rise to the level of a

constitutional violation. See White v. Gregory, 1 F.3d 267, 269 (4th Cir. 1993)

(prisoner’s allegation that he only received two meals per day on weekends

and holidays was insufficient to state an Eighth Amendment violation). In

short, the Plaintiff has failed to alleged that any Defendant knew of and

disregarded a substantial risk of serious harm to the Plaintiff due to these

conditions. Therefore, the Plaintiff’s claim regarding the conditions of his

confinement will be dismissed without prejudice.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s claims for the use of excessive

force against Defendants Stidam and Tapp survive initial review under 28

U.S.C. § 1915(e)(2) as they are not clearly frivolous. 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 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 requirement 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 Truax will be

dismissed from this case without further notice to Plaintiff.

IT IS, THEREFORE, ORDERED that:

(1) The excessive force claims against Defendants Stidam and Tapp

have passed initial review;

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

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

(3) 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 Truax 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: February 22, 2021

Sst ey

Chief United States District Judge Ale

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