# Cromartie v. North Carolina Department of Public Safety of Prisions

> District Court, W.D. North Carolina · July 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10257326

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** July 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:20-cv-00432-MR

CHRISTOPHER D. CROMARTIE, JR., )
)
Plaintiff, )
)
vs. )
)
NORTH CAROLINA DEPARTMENT )
OF PUBLIC SAFETY, et al., ) ORDER
)
Defendants. )
_______________________________ )

THIS MATTER is before the Court on initial review of the Amended
Complaint [Doc. 12]. Also pending are the Plaintiff’s pro se “Motion for
Exhibits and/or Evidence from Original Filings/Documents” [Doc. 11],
“Motion of Extension of Time” [Doc. 10], and “Motion for Default Entry
Judgment or/and Summary Judgment” [Doc. 14]. The Plaintiff is proceeding
in forma pauperis. [Doc. 6].
I. BACKGROUND
The pro se incarcerated Plaintiff filed this civil rights action pursuant to
42 U.S.C. § 1983 complaining about incidents that allegedly occurred at the
Scotland and Alexander Correctional Institutions.1 The Complaint was

1 Plaintiff is presently incarcerated at the Tabor Correctional Institution.
dismissed on initial review, and the Plaintiff was granted the opportunity to
amend. [Doc. 7]. The Plaintiff’s Amended Complaint [Doc. 12] is now before

the Court on initial review.
The Amended Complaint addresses incidents that allegedly occurred
at the Alexander C.I. The Plaintiff appears to assert several violations of the

United States Constitution and for negligence and intentional infliction of
emotional distress under North Carolina law.2 [Doc. 12 at 13]. The Plaintiff
names as the sole Defendant FNU Hardin, a correctional unit sergeant
(“Sergeant Hardin). The Plaintiff seeks compensatory, punitive, and nominal

damages; fees and costs; and an apology letter. [Id. at 18]. The Plaintiff
asks the Court to appoint counsel to assist him with discovery; provide
assistance with summonses and subpoenas; and provide “appropriate
guidance” in litigating this matter. [Doc. 12 at 13, 20, 21].3

2 The Plaintiff identifies his claims as “cruel and unusual punishment, due process,
punitive, intentional infliction of emotional distress, pain and suffering, excessive force,
general negligence, compensatory damages” and “any other violation(s) upon what his
vocabulary can not express due to [the Plaintiff] being a layman of law.” [Doc. 12 at 13].

3 The Plaintiff also asks the Court to transfer his claims against Connie Locklear-Jones,
a physician at Scotland C.I., to the Middle District of North Carolina. [Id.]. The Plaintiff
had named Dr. Locklear-Jones as a Defendant in the Complaint. [Doc. 1]. On initial
review, the Court advised the Plaintiff that he wished to pursue any claims against Dr.
Locklear-Jones, he needed to do so in the Middle District of North Carolina. [Doc. 7 at
6]. The Plaintiff did not name Dr. Locklear-Jones as a Defendant in the Amended
Complaint, and therefore, the Court need not address this request for relief further.
The Plaintiff has also filed several Motions that are presently pending,
including a “Motion for Exhibits and/or Evidence from Original

Filings/Documents” [Doc. 11], a “Motion of Extension of Time” [Doc. 10], and
a “Motion for Default Entry Judgment or/and Summary Judgment” [Doc. 14].
II. STANDARD OF REVIEW

Because 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

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 Amended
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).
As a preliminary matter, the body of the Complaint contains allegations
addressing individuals who are not named as defendants in the caption as

required by Rule 10(a). This failure renders the Plaintiff’s allegations against
them nullities. 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). The
allegations directed at individuals not named as Defendants are therefore
dismissed without prejudice.
The Plaintiff asserts a claim of cruel and unusual punishment against

Defendant Hardin. 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). “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 v. Brennan, 511 U.S. 825, 847 (1994).

The Plaintiff’s allegations that Defendant Hardin knew of the Plaintiff’s
valid medical restrictions but failed to honor them states a plausible Eighth
Amendment claim that will be permitted to pass initial review.

The Court will also exercise supplemental jurisdiction over the
Plaintiff’s North Carolina negligence claim against Defendant Hardin. See
Blackwell v. Hatley, 202 N.C.App. 208, 212, 688 S.E.2d 742, 746 (2010)
(North Carolina law requires that “in order to prevail in a negligence action,

[a plaintiff] must offer evidence of the essential elements of negligence: duty,
breach of duty, proximate cause, and damages.”); 28 U.S.C. § 1367(a)
(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.”).

The Plaintiff purports to assert claims of “excessive force” and “due
process”4 and “any other violation(s)” that he is unable to express as a
layman. [Doc. 12 at 13]. The Court is unable to glean any plausible claims

from these conclusory allegations. Therefore, the Plaintiff’s claims for
“excessive force,” “due process,” and “any other violation(s),” are dismissed.
Finally, the Plaintiff asserts a claim for the intentional infliction of
emotional distress under North Carolina law. The elements are: “(1) extreme

and outrageous conduct, (2) which is intended to cause and does cause (3)
severe emotional distress.” Dickens v. Puryear, 302 N.C. 437, 452, 276
S.E.2d 325, 335 (1981) (citations and quotation marks omitted). The severe

emotional distress required for intentional infliction of emotional distress is
“any emotional or mental disorder, such as for example, neurosis, psychosis,
chronic depression, phobia, or any other type of severe or disabling
emotional or mental condition which may be generally recognized and

diagnosed by professionals trained to do so.” Piro v. McKeever, 245 N.C.

4 To the extent that the Plaintiff intended to assert a substantive due process claim, it is
subsumed by his Eighth Amendment claim. See Williams v. Benjamin, 77 F.3d 756, 768
(4th Cir. 1996) (“it is now well established that the Eighth Amendment ‘serves as the
primary source of substantive protection to convicted prisoners,’ and the Due Process
Clause affords a prisoner no greater substantive protection ‘than does the Cruel and
Unusual Punishments Clause.’”) (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)).
App. 412, 416, 782 S.E.2d 367, 371 (2016), aff’d 369 N.C. 291, 794 S.E.2d
501 (citations omitted). Conduct is “extreme and outrageous” when it

“exceeds all bounds usually tolerated by a decent society.” Shreve v. Duke
Power Co., 85 N.C. App. 253, 257, 354 S.E.2d 357, 359 (1987) (citation and
quotations omitted).

Assuming arguendo that the Plaintiff has adequately alleged extreme
and outrageous conduct, he has failed to plausibly allege that Defendant
Hardin intended to cause the Plaintiff harm, or that any severe emotional
disorder resulted from Defendant Hardin’s actions. Therefore, this claim will

be dismissed.
The Amended Complaint includes requests for the appointment of
counsel for purposes of discovery and for assistance in litigating this matter.

The Plaintiff’s request for assistance with summonses is moot, as the Court
will order the Clerk to commence the procedure for service waiver as to
Defendant Hardin. The requests for counsel and for assistance with
subpoenas are moot insofar as the Court will offer the Plaintiff the opportunity

to request the appointment of North Carolina Prisoner Legal Services for
purposes of discovery pursuant to the Standing Order in Misc. Case No.
3:19-mc-00060-FDW. The Plaintiff’s request for assistance does not

otherwise warrant the appointment of counsel, as he has failed to
demonstrate the existence of extraordinary circumstances. See generally
Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). To the extent that the

Plaintiff requests legal assistance or advice from the Court, this request is
denied. See generally Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District
judges have no obligation to act as counsel or paralegal to pro se litigants.”).

IV. PENDING MOTIONS
The Plaintiff has filed a “Motion for Exhibits and/or Evidence from
Original Filings/Documents” in which he seeks copies of documents that he
previously filed with the Court. [Doc. 11]. This appears to refer to the

documents attached to the Complaint. This Motion is granted and the Clerk
will be instructed to mail the Plaintiff a copy of the Complaint, including its
attachments, as a courtesy.

In his “Motion of Extension of Time,” the Plaintiff reiterates his request
for his previously-filed documents and seeks an extension of time to file the
Amended Complaint. [Doc. 10]. The Plaintiff has already filed his Amended
Complaint and the Court has agreed to provide him a copy of the Complaint.

Therefore, this Motion is denied as moot.
In his “Motion for Default Entry Judgment or/and Summary Judgment,”
the Plaintiff asserts that Defendants have been served and failed to timely

answer or respond to the Amended Complaint. [Doc. 14]. He requests entry
of judgment in his favor and a jury trial on damages. This Motion is denied
because no Defendant has yet been served and there has been no default.

V. CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiff’s Eighth
Amendment claim has survived initial review as to Defendant Hardin and the

Court will exercise supplemental jurisdiction over the Plaintiff’s negligence
claim against him. The remaining claims are dismissed without prejudice.
This Court’s Local Rule 4.3 sets forth the procedure to waive service
of process for current or former employees of NCDPS in actions filed by

North Carolina State prisoners. In light of the Court’s determination that this
case passes initial review, the Court will order the Clerk of Court to
commence the procedure for waiver of service as set forth in Local Civil Rule

4.3 for Defendant Hardin, who is alleged to be a current or former employee
of NCDPS.
IT IS, THEREFORE, ORDERED that Plaintiff’s Eighth Amendment and
negligence claims against Defendant Hardin have survived initial review.

The Plaintiff’s remaining claims are DISMISSED WITHOUT PREJUDICE.
The Clerk of Court shall commence the procedure for waiver of service
as set forth in Local Civil Rule 4.3 for Defendant Hardin, who is alleged to be

a current or former employee of NCDPS.
IT IS FURTHER ORDERED that:
(1) The Plaintiff's “Motion for Exhibits and/or Evidence from Original
Filings/Documents” [Doc. 11] is GRANTED;
(2) The Plaintiff's “Motion of Extension of Time” [Doc. 10] is DENIED
AS MOOT; and
(3) The Plaintiffs “Motion for Default Entry Judgment or/and
Summary Judgment” [Doc. 14] is DENIED.
The Clerk is respectfully instructed to mail the Plaintiff (1) a copy of his
Complaint [Doc. 1], including the attachments, and (2) an Opt-In/Opt-Out
form pursuant to the Standing Order in Misc. Case No. 3:19-mc-00060-FDW.
ITIS SO ORDERED. July 27, 2021

Martifi Reidinger ee
Chief United States District Judge AS

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10257326. Public record. Not legal advice.