Harris v. Mack

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:20-cv-00565-MR

ANTHONY L. HARRIS, )

)

Plaintiff, )

)

vs. )

)

RAVEN DAWN MAC, 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. 9].

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

addressing incidents that allegedly occurred at the Lanesboro and Polk

Correctional Institutions.1 [Doc. 1]. The Plaintiff names as Defendants: the

North Carolina Department of Public Safety (“NCDPS”); FNU Abernathy,

FNU Blackwell and Raven Dawn Mac, correctional sergeants at Lanesboro;

FNU White a lieutenant at Lanesboro; FNU Andrews, FNU Carol, FNU

Collins, FNU Jones, and John Does # 1 and 2, correctional officers at

Lanesboro; FNU West a nurse at Lanesboro; FNU Ingram, a unit manager

1 The Plaintiff filed the Complaint from the Central Prison in Raleigh; he is presently

incarcerated at Polk C.I.

at Lanesboro; FNU Lambert, an assistant unit manager at Lanesboro; Shane

Tharrington, the NCDPS director of classification; Billy Cooper, a unit

supervisor at Polk; FNU Walker, a unit manager at Polk; Johny Halkins, the

warden at Polk; D. Dayes, a supervisor at Polk; and FNU Tucker, the “FCC”

at Polk.

The Plaintiff alleges that, on July 4, 2018, while he was incarcerated at

Lanesboro C.I., Defendant Collins “touched his butt” while she was escorting

the Plaintiff to outside recreation. [Doc. 1 at 3]. The Plaintiff alleges that this

incident led to a “dispute” between the Plaintiff and Collins. [Id.]. The Plaintiff

alleges that Defendant Mac overheard the dispute, “jacked [Plaintiff] up,”

“coerced [him] to his cell,” and denied him recreation. [Id.]. The Plaintiff

alleges that Defendants Mac, Collins and Carol then beat him in his cell and

sprayed his face and eyes with pepper spray. [Id.]. The Plaintiff alleges that

he passed out and the officers left. [Id.].

The Plaintiff alleges that Defendants Blackwell, Jones, and “the rest of

the crew” arrived and an unidentified officer pulled the Plaintiff’s arm through

the trap by one handcuff. [Doc 1 at 4]. The Plaintiff alleges that “the officers”

yelled for the Plaintiff to “stop resisting” even though the Plaintiff was not

resisting, to justify their assault, battery, and use of excessive force. [Id.].

The Plaintiff further alleges that “they” dragged the Plaintiff down a hall in full

restraints to medical while an unidentified officer repeatedly stepped on the

foot restraints to cut into Plaintiff’s ankles. [Id.].

The Plaintiff alleges that Officer Jones and three unidentified officers2

beat the Plaintiff in a holding cell in the medical waiting area, and that one of

the officers ground his privates into the Plaintiff’s butt while the Plaintiff

screamed. The Plaintiff then alleges that an unidentified officer stepped on

the foot chains while the other two officers pulled Plaintiff away in the

opposite direction so the restraints would cut into his ankles. [Id.].

The Plaintiff alleges that Nurse West watched the whole episode in the

medical waiting area through the window, laughing. [Id.]. The Plaintiff

alleges that once he was in the nurse station, West asked him whether he

was hurt or had been maced. [Id.]. The Plaintiff answered “yes” and

requested a “detox.”3 [Id.]. The Plaintiff alleges that Defendant West could

observe swelling to the Plaintiff’s head and his lip injuries, and could smell

the pepper spray on him. [Id.]. The Plaintiff contends that Defendant White

and other unidentified officers told Defendant West not to treat the Plaintiff

and threatened him, telling him to say that nothing happened. [Doc. 1 at 8].

2 The Plaintiff has named only two John Doe officers as Defendants.

3 This refers to a decontamination shower to remove the pepper spray. [See Doc. 1 at

8].

The Plaintiff alleges that Defendant West refused to give the Plaintiff

treatment or medical attention including a decontamination shower. [Id.].

Next, the Plaintiff alleges that “the officers” and Defendant White then

took the Plaintiff to an empty cell where they slammed his head into a wall

and beat him, injuring his ribcage and back. [Id.]. The Plaintiff alleges that

he was then made to strip while the officers joked about his body. He further

alleges that “they” then wrapped chains around the Plaintiff “like a rope, In a

disgraceful and humiliating manner” which Defendant White made them

redo. [Id.]. The Plaintiff alleges that his New Balance shoes were taken

during this incident and were never returned. [Doc. 1 at 11]. He further

alleges that “they” then tightened the restraints to cut into the Plaintiff’s skin

“and the nurse4 acknowledged and accepted it.” [Id. at 8].

The Plaintiff further alleges that “the officers” then took him back to the

medical waiting area holding cell and tightened the restraints even more,

cutting deep into his skin and cutting off the blood flow to his wrists and

ankles, leaving scars. [Id.]. He contends that they made him walk barefoot

down the hall while another officer kept stepping on the foot restraints on

purpose to cut deeper into the Plaintiff’s ankles and feet, causing

unwarranted pain. [Id.].

4 It is unclear whether this refers to Defendant West.

The Plaintiff alleges that Defendant Abernathy threw everything out of

Plaintiff’s cell, and damaged his property and “important documents” with

water, mace, and lotion. [Id.]. He further alleges that Defendant Abernathy

ordered that Plaintiff’s mattress to be removed, and that he and Defendant

Collins left him on the floor in full restraints until 8:00 p.m., when Plaintiff was

found non-responsive on the floor. [Id. at 8, 12]. The Plaintiff alleges that no

“code” was ever announced on the radio or intercom during this incident, and

that Defendant Andrews was “in the booth.” [Id. at 9]. The Plaintiff alleges

that a few days later, Lieutenant Philemont5 came to the Plaintiff’s cell to

write a statement, but “upon reasonable belief,” such statement was never

documented or filed. [Id.].

In addition to his claims of excessive force, the Plaintiff appears to

allege a claim for tampering with his legal mail. The Plaintiff alleges that he

sent legal mail to “NCIC”6 on August 2, 2018, and that NCIC responded a

few days later. [Id.]. The Plaintiff alleges that Defendant Herring delivered

this legal mail opened with the letter stapled to the outside of the envelope.

[Id.].

5 Lieutenant Philemont is not named as a Defendant.

6 This appears to refer to the North Carolina Industrial Commission.

The Plaintiff contends that in retaliation for “all of the above”

(presumably referring to his communication with the North Carolina Industrial

Commission), Defendants Ingram, Lambert, and Tharrington sent the

Plaintiff to Polk C.I.’s H-CON super-maximum unit without due process for

over 310 days, even though the Plaintiff was not found guilty of any charge.

[Id. at 8, 9, 12]. The Plaintiff alleges that the transfer caused him to lose his

kitchen job; have no contact or visitation with his family for two years; and

experience harsher conditions of confinement including no outside

recreation, almost no human contact, all while suffering the effects of his

bone marrow cancer. [Id. at 9].

The Plaintiff alleges that an additional 180 days in H-CON were

recommended by “classification” at Polk under the supervision of Defendants

Walker, Cooper, Tucker, Dayes, and Halkins. [Id. at 10].

As relief, the Petitioner seeks injunctive relief and compensatory and

punitive damages. [Id. at 4].

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).

A. Parties

The Plaintiff attempts to name NCDPS 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, NCDPS is not a “person” under § 1983. See Fox v. Harwood,

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

against NCDPS are accordingly dismissed with prejudice.

The Plaintiff makes allegations against individuals who are not named

as Defendants in the caption as required by Rule 10(a). Such claims are

nullities and they are dismissed without prejudice. 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).

Further, the Plaintiff extensively relies on pronouns and vague terms

such as “officers” and “crew,” rather than identifying the individual(s) involved

in each allegation. Such claims are too vague and conclusory to proceed

and are dismissed without prejudice.

B. Excessive Force & Sexual Abuse

The Plaintiff alleges that he was beaten and sexually assaulted by

various officers.

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. Allegations of sexual abuse by a prison guard can amount to an Eighth

Amendment violation. Jackson v. Holley, 666 F. App’x 242, 244 (4th Cir.

2016); see Woodford v. Ngo, 548 U.S. 81, 118 (2006) (Stevens, J.,

dissenting) (“Accordingly, those inmates who are sexually assaulted by

guards, or whose sexual assaults by other inmates are facilitated by guards,

have suffered grave deprivations of their Eighth Amendment rights.”).

The Fourth Circuit recognizes a cause of action for bystander liability

“premised on a law officer’s duty to uphold the law and protect the public

from illegal acts, regardless of who commits them.” Stevenson v. City of

Seat Pleasant, Md., 743 F.3d 411, 416-17 (4th Cir. 2014) (quoting Randall v.

Prince George’s Cnty., 302 F.3d 188, 203 (4th Cir. 2002)). A “bystander

officer” can be liable for his or her nonfeasance if he or she: “(1) knows that

a fellow officer is violating an individual’s constitutional rights; (2) has a

reasonable opportunity to prevent the harm; and (3) chooses not to act.”

Randall, 302 F.3d at 204.

Upon review of the Complaint, the Court concludes that the Plaintiff’s

allegations that Blackwell, Carol, Collins, Jones, Mac, White, and John Doe

Officers 1 and 2 used excessive force and touched him in a sexual manner

state plausible Eighth Amendment claims, and such claims therefore will be

permitted to proceed.

Next, the Plaintiff alleges that Defendant West observed some of the

foregoing actions through a window and laughed. The Plaintiff has failed to

state a plausible claim for failure to intervene against Defendant West

because he does not allege that she was in a position to intervene, having

observed the alleged use of excessive force from another room.

The Plaintiff further alleges that Defendant Andrews was “in the booth”

at an unspecified time and failed to “call a code.” These allegations are too

vague and conclusory to state a plausible Eighth Amendment claim because

the Plaintiff merely alleges Defendant Andrews’ presence in a booth and fails

to identify the incidents that Andrews is alleged to have witnessed, or that

Andrews was in a position to intervene and failed to do so. Further, the

Plaintiff’s allegation that Defendant Andrews failed to call a code is

insufficient to establish a § 1983 claim insofar it alleges solely an NCDPS

policy violation. See Jackson v. Sampson, 536 F. App’x 356, 357 (4th Cir.

2013) (unpublished) (holding that “prison officials’ failure to follow internal

prison policies are not actionable under § 1983 unless the alleged breach of

policy rises to the level of constitutional violation”).

C. Deliberate Indifference

The Eighth Amendment encompasses a right to medical care for

serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 103-04 (1976).

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, 825 (1994). However,

mere negligence or malpractice does not violate the Eighth Amendment.

Miltier, 896 F.2d at 852. Further, “mere ‘[d]isagreements between an inmate

and a physician over the inmate’s proper medical care’ are not actionable

absent exceptional circumstances.” Scinto v. Stansberry, 841 F.3d 219, 225

(4th Cir. 2016) (quoting Wright v. Collins, 766 F.2d 841, 840 (4th Cir. 1985)).

The Plaintiff’s allegations that Defendants West and White refused to

provide any medical treatment, including a decontamination shower to

remove pepper spray, state plausible deliberate indifference claims against

these Defendants, and such claims will be allowed to proceed.

D. Due Process

The Plaintiff alleges he was sent to Polk C.I. for “H-CON” housing and

that his stay in H-CON was extended without due process.

In order to establish a due process violation, “a plaintiff must first show

that he has a constitutionally protected ‘liberty’ or ‘property’ interest, and that

he has been ‘deprived’ of that protected interest by some form of ‘state

action.’” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir.

1988) (citations omitted). If the plaintiff makes such showing, the court

considers what process was required and whether any provided was

adequate in the particular factual context. Id. In order to demonstrate the

existence of a liberty interest, a plaintiff “must show a legitimate claim of

entitlement – that is, something more than an abstract need or desire….”

Rockville Cars, LLC v. City of Rockville, Md., 891 F.3d 141, 146 (4th Cir.

2018) (citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577

(1972)). To demonstrate a sufficient property interest, an inmate must have

“an individual entitlement grounded in state law.” Logan v. Zimmerman

Brush Co., 455 U.S. 422, 430 (1982). If the inmate does not have such an

interest, then the protections of the Due Process Clause do not apply. See

Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015); Couch v. Clarke, 782 F.

App’x 290, 292 (4th Cir. 2019).

The Plaintiff’s allegations that Defendants Ingram, Lambert, and

Tharrington sent him to H-CON without due process are sufficient to state

plausible claims, and therefore such claims will be allowed to proceed.

However, the Plaintiff’s claims that, once he was at Polk C.I.,

Defendants Cooper, Walker, Halkins, Dayes, and Tucker extended H-CON

by 180 days without due process, are not based on actions that occurred

while the Plaintiff was located in this District. These circumstances pose a

joinder issue because the Federal Rules of Civil Procedure allow joinder of

defendants in a single action when “any right to relief is asserted against

them jointly, severally, or in the alternative with respect to or arising out of

the same transaction, occurrence, or series of transactions or occurrences;

and … any question of law or fact common to all defendants will arise in the

action.” Fed. R. Civ. P. 20(a)(2). “The ‘transaction or occurrence test’ of

[Rule 20] ... ‘permit[s] all reasonably related claims for relief by or against

different parties to be tried in a single proceeding. Absolute identity of all

events is unnecessary.’” Saval v. BL Ltd., 710 F.2d 1027, 1031 (4th Cir.

1983) (quoting Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir.

1974)). However, “Rule 20 does not authorize a plaintiff to add claims

‘against different parties [that] present[ ] entirely different factual and legal

issues.’” Sykes v. Bayer Pharm. Corp., 548 F. Supp. 2d 208, 218 (E.D. Va.

2008) (internal quotations omitted). “And, a court may ‘deny joinder if it

determines that the addition of the party under Rule 20 will not foster the

objectives of [promoting convenience and expediting the resolution of

disputes], but will result in prejudice, expense, or delay.’” Id. (quoting Aleman

v. Chugach Support Servs., Inc., 485 F.3d 206, 218 n.5 (4th Cir. 2007)). This

does not, however, provide a plaintiff free license to join multiple defendants

into a single lawsuit where the claims against the defendants are unrelated.

See, e.g., George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (ruling that

district court should not have allowed prisoner to bring unrelated suits against

unrelated defendants); Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir.

1997). Moreover, the Court is mindful that preventing unrelated claims

against unrelated defendants not only serves the requirements of Rule 20,

but also furthers the goals of the Prison Litigation Reform Act (“PLRA”). See

George, 507 F.3d at 607; accord Fannin v. Sellers, 2020 WL 6808771, at *3

(E.D. Va. Nov. 19, 2020); Coles v. McNeely, 2011 WL 3703117, at *3 (E.D.

Va. Aug. 23, 2011) (“The Court’s obligations under the PLRA include review

for compliance with Rule 20(a)”), aff’d 465 F. App’x 246 (4th Cir. 2012).

The classification decisions relating to the Plaintiff at Polk C.I. did not

occur in this District and do not constitute the same transaction or occurrence

as those made at Lanesboro C.I. See Burns v. Wexford Health Servs., 2019

WL 5394180, at *3 (S.D. Ill. Oct. 22, 2019) (unpublished) (“discretionary

actions taken by different officials at different prisons do not constitute the

same series of transactions and occurrences with questions of fact common

to each of the defendants.”).

The appropriate remedy is to sua sponte dismiss the improper

defendants and sever the unrelated claims. 28 U.S.C. § 1406(a) (“The

district court of a district in which is filed a case laying venue in the wrong

division or district shall dismiss, or if it be in the interest of justice, transfer

such case to any district or division in which it could have been brought.”);

see, e.g., Nunn v. N.C. Legis., 2015 WL 1713885, at *4 (E.D.N.C. Apr. 15,

2015) (on initial review, dismissing without prejudice a prisoner’s claims that

occurred at prisons located in other districts), aff’d, 620 F. App’x 173 (4th Cir.

2015).

Therefore, the Plaintiff’s due process claims will proceed against

Defendants Ingram, Lambert, and Tharrington. However, the due process

claims against Defendants Cooper, Walker, Halkins, Dayes, and Tucker are

dismissed without prejudice to the Plaintiff asserting his claims in the

appropriate District, subject to all procedural and timeliness requirements.7

E. Property Deprivations

The Plaintiff alleges that a pair of shoes was taken and never returned

to him and that property in his cell was destroyed.

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

7 The Court makes no determination regarding the merit or procedural viability of such an

action.

N.C.App. 65, 67, 218 S.E.2d 181, 182 (1975). The Fourth Circuit has

determined that North Carolina provides adequate post-deprivation

remedies for prisoners. 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).

The Plaintiff asserts that Defendant White took a pair of shoes that was

never returned and that Defendant Abernathy damaged property and

documents in his cell. The Plaintiff appears to allege that these property

losses resulted from random, unauthorized acts 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 a due

process claim for the loss of these items. Accordingly, the Plaintiff’s claims

for the alleged loss of property are dismissed.

F. Conditions of Confinement

The Plaintiff appears to allege that the denial of recreation and the

conditions in which he was left in his cell after the use of force incident were

constitutionally infirm.

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.

The Plaintiff’s allegations that Defendants Abernathy and Collins left

him on the floor in full restraints without providing a decontamination shower

for several hours until he was found unresponsive state a plausible Eighth

Amendment claim. However, his claim against “every officer on Anson Unit

at the time of the incident” who witnessed and/or took part in the incident is

too vague and conclusory to proceed. [Doc. 1 at 12]; see Section III(A),

supra.

To the extent that the Plaintiff alleges that Defendant Mac denied him

recreation on a single occasion is not adequately serious to implicate the

Eight Amendment.

F. Legal Mail

The Plaintiff appears to allege that his legal mail was mishandled on a

single occasion.

As a general matter, prisoners have the right to both send and receive

mail. See Thornburgh v. Abbott, 490 U.S. 401, 408 (1989); Pell v. Procunier,

417 U.S. 817 (1974). “[L]egal mail is widely recognized to be privileged and

confidential — even in the context of prisons — which suggests that an

incarcerated person’s expectation of privacy in his legal mail is one ‘that

society is prepared to consider reasonable.’” Haze v. Harrison, 961 F.3d

654, 660 (4th Cir. 2020) (quoting United States v. Catellanos, 716 F.3d 828,

832 (4th Cir. 2013)); see King v. Rubenstein, 825 F.3d 206, 215 (4th Cir. 2016)

(“nothing in Hudson8 indicates the Supreme court intended to abrogate a

prisoner’s expectation of privacy beyond his cell.”). However, a prison rule

requiring that legal mail be opened in the presence of the inmate, without

being read, does not infringe on a prisoner’s constitutional rights. See Wolff

v. McDonnell, 418 U.S. 539, 575–77 (1974); see also Turner v. Safley, 482

U.S. 78, 89 (1987) (prison restrictions impinging on an inmate’s constitutional

8 Hudson v. Palmer, 468 U.S. 517 (1984) (holding that an inmate has no reasonable

expectation of privacy, and thus no Fourth Amendment protection, in his prison cell).

rights are valid if they are reasonably related to legitimate penological

interests).

The Plaintiff appears to allege that Defendant Herring mishandled his

legal mail by delivering a piece of legal mail from NCIC to him, already

opened. This single instance of legal mail mishandling does not rise to the

level of a constitutional violation. See Buie v. Jones, 717 F.2d 925, 926 (4th

Cir. 1983) (stating that “a few isolated instances of plaintiff's mail being

opened out of his presence” that were “either accidental or the result of

unauthorized subordinate conduct ... were not of constitutional magnitude”);

Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (“an isolated incident of

mail tampering is usually insufficient to establish a constitutional violation.”).

Therefore, the claim against Defendant Herring for mishandling the Plaintiff’s

legal mail will be dismissed.

G. Retaliation

Construing the allegations liberally, the Plaintiff appears to allege that

he was sent to H-CON in retaliation for having communication with the North

Carolina Industrial Commission.

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 the exercise of that right.” Suarez Corp. v. McGraw, 202

F.3d 676, 685 (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, retaliation 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).

The Plaintiff’s allegations in this regard are too vague and conclusory

to state a plausible retaliation claim against any Defendant. The Plaintiff

does not identify the Defendant(s) who allegedly retaliated against him and

such cannot be gleaned from the Complaint. The Plaintiff alleges that

Defendant Herring opened his NCIC legal mail, but does not allege that

Herring was responsible for placing him in H-CON; and he does not allege

that Defendants Ingram, Lambert, and Tharrington, who allegedly sent him

to H-CON, knew of the NCIC legal mail. Therefore, the Plaintiff’s retaliation

claim will be dismissed.

H. Supplemental Jurisdiction

Finally, the Plaintiff appears to assert claims under North Carolina law.

Federal district courts may entertain claims not otherwise within their

adjudicatory authority when those claims “are so related to claims ... within

[federal-court competence] that they form part of the same case or

controversy.” 28 U.S.C. § 1367(a). To exercise supplemental jurisdiction, a

court must find that “[t]he state and federal claims ... derive from a common

nucleus of operative fact” where a plaintiff “would ordinarily be expected to

try them all in one judicial proceeding.” United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 725 (1966). When a district court dismisses all claims

independently qualifying for the exercise of federal jurisdiction, it “ordinarily

dismiss[es] all related state claims.” Artis v. Dist. Of Columbia, 138 S.Ct.

594, 595 (2018); see § 1367(c)(3). A district court may also dismiss the

related state claims if there is a good reason to decline jurisdiction. See §

1367(c)(1), (2), and (4).

The Plaintiff asserts that the officers who allegedly used excessive

force against him are liable for assault and battery under North Carolina law.

See generally Dickens v. Puryear, 302 N.C. 437, 445, 276 S.E.2d 325, 330

(1981) (North Carolina assault is an offer to show violence to another without

striking him, and battery is the carrying of the threat into effect by the infliction

of a blow). These claims involve the same Defendants and incidents as the

excessive force claims that have passed initial review. Therefore, the Court

will exercise supplemental jurisdiction over the North Carolina assault and

battery claims at this time.

O R D E R

IT IS, THEREFORE, ORDERED that the claims asserted against

NCDPS are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the excessive force claims against

Defendants Blackwell, Carol, Collins, Jones, Mac, White, and John Does #1

and #2; medical deliberate indifference claims against Defendants West and

White; claims of unconstitutional conditions of confinement against

Defendants Abernathy and Collins; and due process violations against

Defendants Ingram, Lambert, and Tharrington have passed initial review.

The Court will exercise supplemental jurisdiction over the Plaintiff’s North

Carolina assault and battery claims against Defendants Blackwell, Carol,

Collins, Jones, Mac, White, and John Does #1 and #2. The due process

claims against Defendants Cooper, Walker, Halkins, Dayes, and Tucker are

DISMISSED WITHOUT PREJUDICE to the Plaintiff asserting his claims in

the appropriate District, subject to all procedural and_ timeliness

requirements. All other claims asserted in the Complaint are DISMISSED

WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the Plaintiff shall have thirty (30)

days in which 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. If Plaintiff fails to

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

set by the Court, Defendant Andrews will be dismissed from this case without

further notice to Plaintiff.

The Clerk is instructed to mail Plaintiff a blank prisoner § 1983

complaint form.

IT IS SO ORDERED.

Signed: June 7, 2021

Sst ey

Chief United States District Judge Ale

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