Corey v. Madden

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:21-cv-00073-MR

THOMAS ADAM COREY, )

)

Plaintiff, )

)

vs. )

)

) ORDER

)

T.J. MADDEN, 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], and Plaintiff’s Motion for Appointment of Counsel, [Doc. 3].

Plaintiff is proceeding in forma pauperis. [Docs. 2, 9].

I. BACKGROUND

Pro se Plaintiff Thomas Adam Corey (“Plaintiff”) is a prisoner of the

State of North Carolina, currently incarcerated at Sampson Correctional

Institution in Clinton, North Carolina. Plaintiff filed this action on March 17,

2021, pursuant to 42 U.S.C. § 1983, naming T.J. Madden, identified as a

Sheriff’s Deputy in the McDowell County Sheriff’s Department, and Melven

Lytle, identified as a police officer in the Old Fort Police Department, as

Defendants in this matter. [Doc. 1 at 2]. Plaintiff also lists the Old Fort Police

Department (“Old Fort PD”) and the McDowell County Sheriff as Defendants

in the caption in this matter, but he does name them as Defendants on page

two of the Complaint. [See Doc. 1 at 1-3]. The Court will, nonetheless,

consider these as Defendants on initial review here. Plaintiff alleges that

Defendants violated his rights under the Eighth Amendment.1 In support of

this claim, Plaintiff alleges as follows.

On Jan 5th around 12:00 PM Officer Madden was

trying to stop me for an expired tag in Old Fort NC I

tried to pull over at a church because I was worried

about getting beaten Upon information I hear the

officers in this area were known to do that I tried to

find a safe place, found a place I thought was safe

that’s when Officer Lytle T-boned my truck got out

grabbed my hands Officer Madden approached with

“nightstick out” broke my window and beat me and

my service dog senseless I backed my truck up

accidentally hit Officer Madden’s truck backed up

about 30 yards got out with my hands up on my

knees Officers approached me again and beat me

again I had to be transported by “McDowell EMS”.

[Doc. 1 at 5 (errors uncorrected)].

1 Although Plaintiff purports to state his claim under the Eighth Amendment, the Court will

liberally construe Plaintiff’s Complaint and consider his claims as brought under the

Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 397-98 (1989) (holding that

where an excessive force claim arises in the context of an arrest or investigatory stop of

a free citizen, Fourth Amendment protections are invoked and the “objective

reasonableness” standard applies”).

For injuries, Plaintiff claims he sustained physical injuries, including

dislocation of his right thumb that required surgery, bleeding from his ears

and head, and bruising over his face and body.2 [Doc. 1 at 5].

For relief, Plaintiff seeks declaratory relief, compensatory damages,

and costs. [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 “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

2 Plaintiff also alleges that his service dog was physically injured by Defendants’ conduct.

[Doc. 1 at 5].

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. McDowell County Sheriff

Suits against sheriffs in their official capacity are in substance claims

against the office of the sheriff itself. Gannt v. Whitaker, 203 F.Supp.2d 503,

508 (M.D.N.C. Feb. 26, 2002). Municipalities and other local government

units can be sued under § 1983 “when the execution of a government’s policy

or custom … inflicts the [plaintiff’s] injury.” Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694, 98 S. Ct. 2018 (1978) (holding that in an official capacity

suit, the entity’s “policy or custom” must have played a part in the violation of

federal law). A viable § 1983 Monell claim, therefore, consists of two

components: (1) the municipality had an unconstitutional policy or custom;

and (2) the unconstitutional policy or custom caused a violation of the

plaintiff’s constitutional rights. Emesowum v. Arlington Cty, No. 1:20-cv-113,

2020 WL 3050377, at *5 (E.D. Va. June 5, 2020) (citations omitted). In other

words, a governmental unit is liable when a policy or custom is fairly

attributable to the governmental unit as its own and is the moving force

behind the particular constitutional violation. Id. (citing Spell v. McDaniel,

824 F.2d 1380, 1387 (4th Cir. 1987) (quotation marks omitted).

To succeed on a claim against the Sheriff’s Office, the Plaintiff must

allege that a Sheriff’s Office policy or custom resulted in the violation of

federal law. See Monell, 436 U.S. at 694, 98 S. Ct. at 2037-38; Oklahoma

City v. Tuttle, 471 U.S. 808, 818-20, 105 S. Ct. 2427, 2433-34 (1985)

(discussing same). To the extent Plaintiff intended to name the McDowell

County Sheriff as a Defendant, Plaintiff has not alleged that any policy or

custom of this Defendant caused the constitutional violation. Plaintiff,

therefore, has failed to state an official capacity claim against the McDowell

County Sheriff under § 1983.

As to any potential individual capacity claim against the McDowell

County Sheriff, the doctrine of respondeat superior does not apply in actions

brought under § 1983. See Monell, 436 U.S. at 694. Rather, to establish

liability under § 1983, a plaintiff must show that the defendant “acted

personally” to cause the alleged violation. See Vinnedge v. Gibbs, 550 F.2d

926, 928 (4th Cir. 1977) (citation omitted). Plaintiff here make no allegations

of personal participation by the McDowell County Sheriff and has, therefore,

failed to state a claim for individual liability under § 1983.

As such, Plaintiff has failed to state a claim against the McDowell

County Sheriff in either his individual or official capacity and he will be

dismissed as a Defendant in this matter on initial review.

B. Old Fort Police Department

A police department is not a municipal entity subject to Monell liability

under North Carolina law. See Smith v. Munday, 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); Wright v. Town of Zebulon, 202 N.C.

App. 540, 688 S.E.2d 786, 789 (2010)). As such, to the extent Plaintiff

intended to name the Old Fort PD as a Defendant in this matter, he has failed

to state a claim against it. Old Fort PD will, therefore, be dismissed as a

Defendant.

C. Defendants Lytle and Madden

“In addressing an excessive force claim brought under § 1983, analysis

begins by identifying the specific constitutional right allegedly infringed by the

challenged application of force.” Graham v. Connor, 490 U.S. 386, 394, 109

S. Ct. 1865, 1870 (1989). “In most instances, that will be either the Fourth

Amendment’s prohibition against unreasonable seizures of the person, or

the Eighth Amendment’s ban on cruel and unusual punishments.” Id. “The

Fourth Amendment prohibition on unreasonable seizures bars police officers

from using excessive force to seize a free citizen.” Jones v. Buchanan, 325

F.3d 520, 527 (4th Cir. 2003). In this regard, the inquiry is whether a

reasonable officer would have determined that the degree of force used was

justified by the threat presented, an objective inquiry “requir[ing] careful

attention to the facts and circumstances in each particular case,” including

“’the severity of the crime at issue,’ whether the ‘suspect poses an immediate

threat to the safety of the officers or other,’ and whether the suspect ‘is

actively resisting arrest or attempting to evade arrest by flight.’” Id. at 527

(quoting Graham, 490 U.S. at 396).

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

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

claims against Defendants Madden and Lytle survive initial review as they

are not clearly frivolous.

IV. MOTION FOR COUNSEL

Plaintiff has also moved for appointment of counsel. [Doc. 3]. In

support of his motion to appoint counsel, Plaintiff states that he cannot afford

counsel and that his “imprisonment will greatly limit his ability to litigate.” [Id.

at 1]. Plaintiff also argues that the issues involved in this case are complex

and will require significant research and investigation and that Plaintiff has

limited access to a law library and limited knowledge of the law. [Id. at 2].

Finally, Plaintiff states that a trial in this matter will likely involve conflicting

testimony, and counsel would better enable plaintiff to present evidence and

cross examine witnesses. [Id.]. A plaintiff must present “exceptional

circumstances” to require the Court to seek the assistance of a private

attorney for a plaintiff who is unable to afford counsel. Miller v. Simmons,

814 F.2d 962, 966 (4th Cir. 1987). The Plaintiff here has not presented

exceptional circumstances that justify appointment of counsel. Therefore,

Plaintiff’s motion to appoint counsel will be denied.

V. CONCLUSION

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

against Defendants Madden and Lytle survive initial review, Defendants Old

Fort PD and McDowell County Sheriff are dismissed with prejudice, and

Plaintiff’s motion for counsel is denied.

ORDER

IT IS, THEREFORE, ORDERED that:

(1) Plaintiff’s Fourth Amendment claims against Defendants

Madden and Lytle survive initial review in accordance with the terms of this

Order.

(2) Plaintiff’s claims against Defendants Old Fort Police Department

and the McDowell County Sheriff fail initial review and these Defendants

shall be DISMISSED with prejudice as Defendants in this matter.

(3) Plaintiff’s Motion for Appointment of Counsel [Doc. 3] is DENIED.

The Clerk of Court is instructed to mail two (2) blank summonses to

Plaintiff to fill out and identify Defendants Madden and Lytle for service of

process, and then return the summonses to the Court. Plaintiff is required

to provide the necessary information for the U.S. Marshal to effectuate

service on Defendants. As the Court receives the summonses from Plaintiff,

the Clerk shall direct the U.S. Marshal to effectuate service upon

Defendants.3

3 The Court notes that the summons filed by Plaintiff with his Complaint does not provide

the information necessary for service on these Defendants. [See Doc. 1-3].

The Clerk is respectfully instructed to add the Old Fort Police

Department and the McDowell County Sheriff as Defendants in this matter

and to reflect their termination as Defendants.

IT IS SO ORDERED. Signed: June 7, 2021

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Chief United States District Judge “lly

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