McAbee v. Marlow

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:21-cv-00282-MR

CHRISTOPHER ALLAN MCABEE, )

)

Plaintiff, )

)

vs. ) ORDER

)

FNU MARLOW, et al., )

)

Defendants. )

________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s

Amended Complaint [Doc. 6], filed under 42 U.S.C. § 1983. See 28 U.S.C.

§§ 1915(e) and 1915A. Plaintiff is proceeding in forma pauperis. [Docs. 7,

9].

I. BACKGROUND

Pro se Plaintiff Christopher Allan McAbee is a pretrial detainee

currently at Gaston County Jail (the “Jail”) in Gastonia, North Carolina. He

filed this action on June 14, 2021, pursuant to 42 U.S.C. § 1983,1 naming as

Defendants FNU Marlow, identified as a Deputy at the Gaston County

Sheriff’s Office (“Sheriff’s Office”); Alan Cloninger, identified as the Sheriff of

1 Plaintiff’s original Complaint was illegible, and the Court ordered Plaintiff to file a legible

Amended Complaint. [Docs. 1, 4]. The Court now reviews Plaintiff’s Amended

Complaint, [Doc. 6], which was filed on June 25, 2021.

Gaston County; and the Sheriff’s Office.2 [Doc. 6 at 2-3]. Plaintiff sues

Defendants Marlow and Cloninger in their individual and official capacities

and purports to sue Defendant Sheriff’s Office in these capacities as well.

[Id.]. Plaintiff alleges as follows. On March 16, 2021, Plaintiff was placed in

cell block “C” at the Jail. One minute later Defendant Marlow entered the

block and asked, “Who wants to fight?” Defendant Marlow then looked at

Plaintiff and asked, “You wanna fight me? You wanna get beat up?” Plaintiff

responded, “It don’t matter.” Defendant Marlow then attacked Plaintiff,

forcing Plaintiff up the stairs “while gripping [Plaintiff] in a full Nelson.”

Marlow slammed Plaintiff’s face against the stairs. [Id. at 5]. Another inmate

witnessed the incident and wrote a statement. [Id.]. Plaintiff filed a grievance

through the Jail kiosk, which was thrown away. On May 17, 2021, Defendant

Marlow was conducting a round in “D” block, where Plaintiff was then

apparently housed. Plaintiff asked Marlow for his shield number. Although

Marlow initially refused and walked away, he returned and gave Plaintiff his

shield number. [Id. at 6]. Plaintiff makes no allegations against Defendant

Cloninger or Defendant Sheriff’s Office. Plaintiff claims that this conduct

violated his Fourteenth Amendment rights to due process and to be free from

cruel and unusual punishment. [Doc. 6 at 3].

2 Plaintiff names the Sheriff’s Office as the Sheriff’s “Department.” [Doc. 6 at 3].

Plaintiff claims that he suffered various physical injuries, but that he did

not receive medical treatment. [Id. at 7]. For relief, Plaintiff seeks

compensatory damages and declaratory and injunctive relief. [Id.].

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 Fourteenth Amendment “protects a pretrial detainee from the use

of excessive force that amounts to punishment.” Graham v. Connor, 490

U.S. 386, 395 n.10 (1989). To state an excessive force claim, a pretrial

detainee must show only that the force “purposely or knowingly used against

him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389

(2015). The standard for assessing a pretrial detainee’s excessive force

claim is “solely an objective one.” Id. In determining whether the force was

objectively unreasonable, a court considers the evidence “from the

perspective of a reasonable officer on the scene, including what the officer

knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham,

490 U.S. at 396).

Taking Plaintiff’s allegations as true and giving Plaintiff the benefit of

every reasonable inference, he has stated a claim against Defendant Marlow

under the Fourteenth Amendment based on the use of excessive force.

Plaintiff, however, has failed to state a claim against Defendants

Cloninger and Sheriff’s Office. He makes no allegations against these

Defendants. Moreover, Defendant Sheriff’s Office is not a “person” subject

to suit under § 1983. See Brooks v. Pembroke Cty. Jail, 722 F. Supp. 1294,

1301 (E.D.N.C. 1989). Furthermore, absent allegations to the contrary, it

appears that Defendant Cloninger is named only in his supervisory capacity.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (stating that

liability under § 1983 is personal in nature, and the doctrine of respondeat

superior does not apply). The Court will, therefore, dismiss Defendants

Cloninger and Sheriff’s Office on initial review.

B. Due Process

Plaintiff appears to allege that his Fourteenth Amendment due process

rights were violated because the grievance he submitted regarding the

incident was “thrown away.” [See Doc. 6 at 4, 6]. “The 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). As such, Plaintiff has failed to state a claim for Constitutional violation

based on his grievance having been thrown away. The Court will dismiss

this claim under 28 U.S.C. § 1915(e).

IV. CONCLUSION

For the foregoing reasons, the Court concludes that the Plaintiff's

Complaint against Defendant Marlow for violation of Plaintiff's Fourteenth

Amendment rights based on the use of excessive force survives initial

review. Plaintiffs due process claim and the claims against Defendants

Cloninger and Sheriff's Office are dismissed.

ORDER

IT IS THEREFORE ORDERED that all claims against Defendants Alan

Cloninger and Gaston County Sheriffs Department and all Plaintiff's

claims based on the violation of his due process rights under the Fourteenth

Amendment are DISMISSED on initial review under 28 U.S.C. § 1915(e).

The Clerk of Court is instructed to mail a blank summons to Plaintiff

to fill out and identify Defendant Marlow for service of process, and then

return the summons to the Court. Plaintiff is required to provide the

necessary information for the U.S. Marshal to effectuate service on

Defendant Marlow. When the Court receives the summons from Plaintiff,

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

Defendant Marlow.

ITIS SO ORDERED. _ Signed: August 9, 2021