The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:21-cv-00164-MR
THOMAS HUGHES, )
)
Plaintiff, )
)
vs. ) ORDER
)
FNU PROPST, )
)
Defendant. )
________________________________ )
THIS MATTER is before the Court on initial review of Plaintiff’s
Complaint, [Doc. 1], filed under 42 U.S.C. § 1983, and Plaintiff’s Motion for
Leave to File an Amended Complaint and Amended Complaint, [Docs. 5, 5-
1]. See 28 U.S.C. §§ 1915(e) and 1915A. Plaintiff is proceeding in forma
pauperis. [Docs. 2, 9].
I. BACKGROUND
Pro se Plaintiff Thomas Hughes (“Plaintiff”) is a North Carolina state
inmate currently incarcerated at Foothills Correctional Institution (“Foothills”)
in Morganton, North Carolina. He filed this action on June 21, 2021, pursuant
to 42 U.S.C. § 1983, naming FNU Propst, identified as a Correctional Officer
at Foothills, as the sole Defendant. [Doc. 1]. On July 2, 2021, before initial
review, Plaintiff filed a motion for leave to amend his Complaint and an
Amended Complaint.1 [Docs. 5, 5-1]. In his Amended Complaint, Plaintiff
asserts an Eighth Amendment claim based on the use of excessive force
against Defendant Propst, who Plaintiff names in his individual capacity only.
[Doc. 5-1 at 2, 5-6]. Plaintiff also purports to raise a due process claim based
on the conduct of his related disciplinary hearing, but he does not name a
defendant relative to this claim. [See id. at 3-4].
Plaintiff alleges as follows. On May 3, 2021, Defendant Propst and
Officer Greene were assisting restrictive housing inmates in Plaintiff’s wing
with showers. [Doc. 5-1 at 2]. The showers in restrictive housing are
individually secured. [See id. at 3]. Defendant Propst and Officer Greene
left Plaintiff and two other inmates in the showers for an extended period.
[Id.]. The inmates yelled for Propst and Greene to get them out of the
showers. [Id.]. While Plaintiff was undressed in the secured shower,
Defendant Propst approached the shower door and asked Plaintiff if he had
a problem with the way Propst ran the wing. [Id.]. Plaintiff responded that
he did not know what Propst was talking about and asked him to step away
from the shower door because Plaintiff was undressed and trying to put on
his underwear. [Id.]. Plaintiff put on his underwear and a verbal altercation
1 The Court will grant Plaintiff’s motion to amend and consider Plaintiff’s Amended
Complaint on initial review here.
between Plaintiff and Defendant Propst ensued. [Id. at 3]. Defendant Propst
pulled out his pepper spray and sprayed Plaintiff through the secured caged
shower door, spraying Plaintiff in his face and, allegedly, his genital area.2
[Id.]. Defendant Propst then lied to the sergeant on duty, claiming that he
used pepper spray on Plaintiff because Plaintiff spit on him. [Id.].
An investigation of the incident was conducted. There was also an
“internal affairs” investigation. [Id. at 3]. Four other inmates and Officer
Greene provided witness statements corroborating Plaintiff’s version of the
events. [Id. at 3-4]. Nonetheless, Plaintiff was charged with a disciplinary
infraction. Disciplinary Hearing Officer (DHO) Randy Mull did not allow
Plaintiff to bring live witnesses at his hearing and did not allow Plaintiff to
explain the incident. Instead, DHO Mull told Plaintiff, “Whether you did it or
not doesn’t matter to me[.] He might not be able to prove that you spit on
him, but you can’t prove that you didn’t either.” [Id. at 4]. Despite Plaintiff’s
five witness statements, including Officer Greene’s, and video footage
supporting Plaintiff’s innocence, DHO Mull found Plaintiff guilty of the
infraction. [Id.]. Plaintiff immediately appealed this result, but his appeal was
denied. [Id.].
2 Plaintiff alleges that Defendant sprayed him “in the genatles [sic],” but this is inconsistent
with Plaintiff’s allegation that he had put on his underwear by that time. [Doc. 5-1 at 3].
Plaintiff alleges that he is a mental health level three inmate with a
significant history of mental health issues. Plaintiff claims that this incident
has greatly increased his anxiety and post-traumatic stress disorder
symptoms due to his history of similar acts of abuse. [Id. at 5]. Plaintiff seeks
monetary and declaratory relief. [Id. at 6].
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
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution or laws of the United States
and must show that the deprivation of that right was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
A. Excessive Force
The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments,” U.S. CONST. amend. VIII, and protects prisoners from the
“unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,
319 (1986). To establish an Eighth Amendment claim, 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.
Furthermore, the Supreme Court has made clear that “[a]n inmate who
is gratuitously beaten by guards does not lose his ability to pursue an
excessive force claim merely because he has the good fortune to escape
without serious injury.” Wilkins v. Gaddy, 130 S. Ct. 1175, 1178-79 (2010).
Taking Plaintiff’s allegations as true for the purposes of this initial
review and drawing all reasonable inferences in his favor, Plaintiff states an
Eighth Amendment claim against Defendant Propst.
B. Due Process
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).
Although prisoners are afforded some due process rights while incarcerated,
those liberty interests are limited to “the freedom from restraint which, while
not exceeding the sentence in such and unexpected manner as to give rise
to protection by the Due Process Clause of its own force, nonetheless
imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995). The Supreme Court has repeatedly held that a prisoner has no
constitutional right under the due process clause to be incarcerated in a
particular facility or to be held in a specific security classification, barring
some showing by the prisoner 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); Olim v. Wakinekona, 461 U.S. 238,
245 (1983); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Hewitt v. Helms,
459 U.S. 460, 468 (1976). Moreover, 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) (“The federal constitution
itself vests no liberty interest in inmates in retaining or receiving any
particular security or custody status ‘[a]s long as the [challenged] conditions
or degree of confinement ... is within the sentence imposed ... and is not
otherwise violative of the Constitution.’”) (quoting Hewitt v. Helms, 459 U.S.
460, 468 (1983)).
Where a prison disciplinary hearing may result in the loss of good time
credits, however, the inmate must receive (1) advance written notice of the
disciplinary charges; (2) an opportunity, when consistent with institutional
safety and correctional goals, to call witnesses and present documentary
evidence in his defense; and (3) a written statement by the factfinder of the
evidence relied on and the reasons for the disciplinary action.”
Superintendent, Mass. Correctional Institution v. Hill, 105 S. Ct. 2768 (1985)
(citing Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963 (1974)).
Taking Plaintiff’s allegations as true and giving him the benefit of every
reasonable inference, Plaintiff has failed to state a claim for violation of his
due process rights related to the conduct of his disciplinary hearing. Plaintiff
does not allege that the proceedings resulted in the loss of good-time credits
nor in any “atypical and significant hardship … in relation to the ordinary
incidents of prison life.” See Wolff, 418 U.S. 539; Sandin, 515 U.S. at 484.
As such, no violation of procedural due process rights is implicated by the
alleged conduct.
The Court will, however, allow Plaintiff the opportunity to amend his
complaint to state a claim for relief, if such amendment is supported by the
facts. Should Plaintiff amend his complaint to assert a due process claim,
he must identify any party against whom he is bringing the claim as a
Defendant in this matter.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the Plaintiff’s
Complaint against Defendant Propst for violation of Plaintiff’s Eighth
Amendment rights survives initial review. The Court will allow Plaintiff thirty
(30) days to amend his Amended Complaint, if he so chooses, to properly
state a claim upon which relief can be granted against DHO Randy Mull. Any
amended complaint will be subject to all timeliness and procedural
requirements and will supersede the Amended Complaint. Piecemeal
amendment will not be permitted. Should Plaintiff fail to timely amend his
Amended Complaint in accordance with this Order, the matter will proceed
against Defendant Propst on Plaintiff’s Eighth Amendment claim only.
ORDER
IT IS, THEREFORE, ORDERED that the excessive force claim against
Defendant Propst survives initial review.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File an
Amended Complaint [Doc. 5] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall have thirty (30) days in
which to amend the Amended Complaint in accordance with the terms of this
Order. If Plaintiff fails to so amend his Amended Complaint, the matter will
proceed against Defendant Propst as provided in this Order.
The Clerk is respectfully instructed to docket Docket No. 5-1 as
Plaintiff’s Amended Complaint.
The Clerk is also respectfully instructed to mail Plaintiff a blank prisoner
§ 1983 form.
IT IS SO ORDERED.
Signed: July 27, 2021
Martifi Reidinger ee,
Chief United States District Judge MS
10