Futrell v. Cooper

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:20-cv-00543-MR

JAMES ALFRED FUTRELL, )

)

Plaintiff, )

)

vs. )

)

ROY COOPER, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

Complaint [Doc. 12]. Plaintiff is proceeding in forma pauperis. [Doc. 7].

I. BACKGROUND

The pro se Plaintiff, who is presently incarcerated at the Catawba

Correctional Center (“Catawba C.C.”), filed this civil rights action pursuant to

42 U.S.C. § 1983 complaining about several transfers and prison conditions

that occurred during the COVID-19 pandemic. [Doc. 1].

On April 2, 2021, the Court conducted an initial review of the Plaintiff’s

Complaint and concluded that the Plaintiff had failed to state a claim upon

which relief could be granted. [Doc. 11]. The Court gave the Plaintiff thirty

(30) days to file an amended complaint addressing the deficiencies identified

by the Court. The Plaintiff filed his Amended Complaint on April 26, 2021.

[Doc. 12].1 The Amended Complaint is therefore ripe for initial review.

In his Amended Complaint, the Plaintiff reasserts his § 1983 claims

based on his transfers between prisons and the general prison conditions

that occurred during the COVID-19 pandemic. [Id.]. He names as

Defendants in their official capacities: Roy Cooper, the North Carolina

governor; Erik Hooks, the secretary of the North Carolina Department of

Public Safety (“NCDPS”); and Bill Fowler, Eric Montgomery, Angela Bryant,

and Graham Atkinson, post-release supervision and parole commissioners.

[Id.]. The Plaintiff seeks injunctive relief, immediate release from NCDPS,2

and compensatory and punitive damages. [Id. at 21-22].

II. STANDARD OF REVIEW

Because the Plaintiff is proceeding in forma pauperis, the Court must

review the Amended 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

1 The Plaintiff’s Amended Complaint is considered to be filed on the date that he delivered

the pleading to prison officials for mailing. See Houston v. Lack, 487 U.S. 266 (1988);

Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 735 (4th Cir. 1991) (applying Houston

to § 1983 actions).

2 The Court cannot modify the terms of the Plaintiff’s confinement in his state criminal

proceedings. Such relief is not available in suits brought pursuant to § 1983 in federal

court. See generally Preiser v. Rodriguez, 411 U.S. 475 (1973).

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 Amened

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 body of the Amended Complaint refers to individuals who are not

named as Defendants in the caption as required by the Federal Rule of Civil

Procedure 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 complaint but who were served).

The Amended Complaint also refers to individuals besides the Plaintiff

who have allegedly experienced harmful prison conditions during COVID-19.

However, the Plaintiff’s status as a pro se prisoner precludes him from

making claims on behalf of others. See Hummer v. Dalton, 657 F.2d 621,

635-26 (4th Cir. 1981) (a prisoner cannot act as a “knight-errant” for others);

Oxendine v. Williams, 509 F.2d 1405 (4th Cir. 1975) (“it is plain error to permit

[an] imprisoned litigant who is unassisted by counsel to represent his fellow

inmates in a class action.”). Therefore, to the extent that the Plaintiff

attempts to assert claims on behalf of others, such claims are dismissed.

B. Official Capacity Claims

The Plaintiff purports to sue the Defendants, who are all state officials,

only in their official capacities. [Doc. 12 at 2-3]. However, “a suit against a

state official in his or her official capacity is not a suit against the official but

rather is a suit against the official’s office.” Will v. Dep’t of State Police, 491

U.S. 58, 71 (1989). Because a state is not a “person” under § 1983, state

officials acting in their official capacities cannot be sued for damages

thereunder. Allen v. Cooper, 2019 WL 6255220, at *2 (M.D.N.C. Nov. 22,

2019). Furthermore, the Eleventh Amendment bars suits for monetary

damages against the State of North Carolina and its various agencies. See

Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir. 2003). As such, the

Plaintiff’s claims for damages do not survive initial review and will be

dismissed.

C. Eighth Amendment

The Plaintiff alleges that his transfers among NCDPS facilities during

the COVID-19 pandemic and the conditions of confinement at Catawba C.C.

subject him to unreasonably dangerous conditions in violation of the Eighth

Amedment. [Doc. 12 at 14-20].

The Eighth Amendment protects prisoners from inhumane methods of

punishment and from inhumane conditions of confinement. Williams v.

Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). 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). A plaintiff

must allege facts sufficient to support a claim that prison officials knew of

and disregarded a substantial risk of serious harm. Farmer v. Brennan, 511

U.S. 825, 847 (1994). A plaintiff must also allege “a serious or significant

physical or emotional injury resulting from the challenged conditions.”

Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993).

The Plaintiff expresses his general dissatisfaction with NCDPS’s

handling of the COVID-19 pandemic. However, he has failed to plausibly

allege that the prison transfers and housing conditions that he is

experiencing are sufficiently serious, or that the Defendants have acted with

deliberate indifference.

Several of the Plaintiff’s allegations of deliberate indifference are self-

defeating. For instance, while the Plaintiff disagrees with prison officials’

decision to transfer him twice without first testing him for COVID-19, he

admits that he was quarantined for each transfer and that testing has now

been implemented. [See Doc. 12 at 24]. The Plaintiff also disagrees with

the handling of a COVID-19 exposure in the kitchen, yet he admits that the

exposed kitchen workers were quarantined and that substitute workers were

brought into the prison. [Id. at 17, 20].

The Plaintiff’s other allegations also fail to plausibly demonstrate

deliberate indifference. He complains that: prison staff come and go from

the prison;3 the ventilation systems are not adequately separated for

3 Any suggestion that the prison staff should remain at the prison for the duration of the

pandemic is, of course, frivolous.

quarantined and non-quarantined inmates; and six feet of social distancing

space is not present between bunks. [Doc. 12 at 11, 12]. “[T]he inability …

to practice social distancing at all times does not, without more, demonstrate

that defendants have deliberately disregarded these risks.”4 Duvall v.

Hogan, 2020 WL 3402301, at *13–14 (D. Md. June 19, 2020); Swain v.

Junior, 961 F.3d 1276, 1287 (11th Cir. 2020) (“Failing to do the ‘impossible’

doesn’t evince indifference, let alone deliberate indifference.”). To the extent

that isolated lapses in implementing safety provision occurred, the Plaintiff

has failed to explain how these were the result of deliberate indifference.

Reinhardt v. Hogan, 2021 WL 82894, at *6 (D. Md. Jan. 11, 2021) (“the

Eighth Amendment is not violated when every conceivable protective

measure is put into place to prevent the spread of a contagious disease and

there are isolated lapses in implementation that cause no injuries.”). The

Plaintiff’s allegations that the Defendants failed to provide the most optimal

possible conditions of incarceration during the COVID-19 pandemic is

insufficient to state a plausible § 1983 claim. See generally Daniels v.

4 The CDC has acknowledged that social distancing strategies “will need to be tailored to

the individual space in the facility” and that “[n]ot all strategies will be feasible in all

facilities.” See https://www.cdc.gov/coronavirus/2019-ncov/community/correction-

detention/guidance-correctional-detention.html#previous-updates (last visited July 26,

2021).

Williams, 474 U.S. 327, 328 (1986) (claims of negligence are the province of

state law and do not support a constitutional claim).

Moreover, the Plaintiff has failed to plausibly allege that the Defendants

caused any serious or significant physical or emotional injury. The Plaintiff

does not allege that he has sustained any physical injury whatsoever. His

generalized allegations of “misery, anxiety, and depression” [Doc. 12 at 20]

are shared by many incarcerated and non-incarcerated individuals alike

during this unprecedented pandemic. They are, however, inadequate to

demonstrate that the Defendants’ actions or inactions caused him any

serious or significant mental injury for purposes of the Eighth Amendment.

See Strickler, 989 F.2d at 1380 and n.4 (there must be evidence of a “serious

medical or emotional deterioration” that is attributable to the challenged

condition; general allegations of mental stress are insufficient).

The Plaintiff has failed to allege any facts stating a plausible claim that

the Defendants violated his Eighth Amendment rights. Therefore, this claim

will be dismissed as frivolous and for failure to state a claim upon which relief

can be granted.

D. Fourteenth Amendment

The Plaintiff alleges that his prison transfers and the prison conditions

to which he was subjected violate his rights to due process under the

Fourteenth Amendment. [Doc. 12 at 20]. He also alleges that he was denied

participation in the Extended Limits of Confinement (“ELC”)5 program in

violation of his due process rights. [Id. at 12].

The Fourteenth Amendment’s Due Process Clause prohibits states

from “depriv[ing] any person of life, liberty, or property without due process

of law.” U.S. Const. Amend. XIV, § 1. Prisoners do not have a liberty interest

in any particular housing assignment unless it 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 Plaintiff’s conclusory allegations that two transfers within NCDPS

and the conditions at Catawba C.C. may lead to his torture and death by way

of COVID-19 infection are too speculative to support a § 1983 due process

claim. The facts that he was transferred twice during the pandemic despite

5See https://www.ncdps.gov/new-extended-limits-confinement-program#:~:text=To%

20be%20considered%20for%20Extended,review%20does%20not%20guarantee%

20participation (last visited July 26, 2021).

his wishes, and that his incarceration happens to coincide with a pandemic,

fail to plausibly allege that the Defendants have deprived him of due process

in any way.

To the extent that the Plaintiff suggests that he should be permitted to

serve his remaining sentence outside of prison under the ELC program, this

too fails to state a § 1983 claim. The Plaintiff has no vested interest in being

granted participation in the ELC, and therefore, whether Defendant Hooks

will consider him for the program and/or grant him participation has no

constitutional implications whatsoever. See generally 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”).

Therefore, the Plaintiff’s Fourteenth Amendment claim will be

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

E. Grievances

The Plaintiff appears to allege that his grievances addressing transfers

and prison conditions during COVID-19 were improperly rejected and

denied. [Doc. 12 at 14-15].

“[T]he Constitution creates no entitlement to grievance procedures or

access to any such procedure voluntarily established by a state.” Adams v.

Rice, 40 F.3d 72, 75 (4th Cir. 1994). “An inmate thus cannot bring a § 1983

claim alleging denial of a specific grievance procedure.” Booker v. S.C. Dep’t

of Corr., 885 F.3d 533, 541 (4th Cir. 2017). The Plaintiff’s allegation that he

submitted grievances that went unanswered or were rejected fails to rise to

the level of a constitutional violation. Therefore, the Plaintiff’s claims directed

to his prison grievances will be dismissed for failure to state a claim.

F. Supplemental Jurisdiction

The Plaintiff additionally asks the Court to enforce a state court

injunction6 and Defendant Cooper’s executive orders pertaining to the

COVID-19 pandemic. [Doc. 12 at 21-22].

The district courts have supplemental jurisdiction over claims that are

so related to the claims over which the court has original jurisdiction that they

“form part of the same case or controversy under Article III of the United

States Constitution.” 28 U.S.C. § 1367(a); see Artis v. D.C., 138 S.Ct. 594

(2018) (included within this supplemental jurisdiction are state claims

6 The Plaintiff appears to refer to the June 16, 2020 preliminary injunction and February

25, 2021 settlement agreement entered by the Wake County General Court of Justice,

Superior Court Division, in N.A.A.C.P. v. Cooper, Case No. 20CVS500110. [See Doc.

12 at 19].

brought along with federal claims arising from the same episode). A court

may decline to exercise supplemental jurisdiction if: (1) the claim raises a

novel or complex issue of state law; (2) the claim substantially predominates

over the claim or claims over which the district court has original jurisdiction;

(3) the district court has dismissed all claims over which it has original

jurisdiction; or (4) in exceptional circumstances, there are other compelling

reasons for declining jurisdiction. 28 U.S.C. § 1367(c)(1)-(4).

The Plaintiff’s allegations about the state court injunction and executive

orders are far from the model of clarity. Further, no federal claim has passed

initial review so the Court would decline to exercise supplemental jurisdiction

at this time even if the Plaintiff had stated a facially sufficient claim under

North Carolina law.

IV. CONCLUSION

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

therefore, the Amended Complaint will be dismissed.

IT IS, THEREFORE, ORDERED that Plaintiff’s Amended Complaint is

dismissed as frivolous, for failure to state a claim upon which relief can be

granted, and for seeking damages from immune parties pursuant to 28

U.S.C. § 1915(e)(2)(B)(i)-(iii).

The Clerk is respectfully instructed to close this case.

IT IS SO ORDERED.

Signed: July 28, 2021

Martiff Reidinger ey

Chief United States District Judge MES

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