# Fuller v. Sheppard

> District Court, W.D. North Carolina · November 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10257720

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** November 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:21-cv-00257-MR

JOHNATHAN A. FULLER, )
)
Plaintiff, )
)
vs. ) ORDER
)
FNU SHEPPARD, et al., )
)
Defendants. )
________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s
Complaint [Doc. 1], filed under 42 U.S.C. § 1983. See 28 U.S.C. §§ 1915(e)
and 1915A. Plaintiff is proceeding in forma pauperis. [Docs. 2, 7].
I. BACKGROUND
Pro se Plaintiff Johnathan A. Fuller (“Plaintiff”) is a prisoner of the State
of North Carolina currently incarcerated at Avery/Mitchell Correctional
Institution (“AMCI”) in Spruce Pine, North Carolina. He filed this action on
September 27, 2021, pursuant to 42 U.S.C. § 1983, against Defendants FNU
Sheppard, identified as an officer at AMCI; R. Honeycutt, identified as the
Superintendent of AMCI; Randy S. Mull, identified as a North Carolina
Department of Public Safety (NCDPS) Disciplinary Hearing Officer (DHO);
and Todd Ishee, identified as the Commissioner of the NCDPS. [Doc. 1 at
2-3]. Plaintiff alleges that, on December 4, 2020, while Plaintiff, an African
American, was housed in segregation at AMCI, Defendant Sheppard tried to

force Plaintiff to sign a DC-160 form, which would have given permission to
destroy “all of [Plaintiff’s] valuables,” which included “family photos,
obituaries, all legal books and personal, prescription eyewear, shades, and

several other small personal items.” [Id. at 3-4]. Although Plaintiff does not
allege having signed the form, he claims he was denied many of his
photographs, which depicted Plaintiff’s Caucasian fiancé and friends, and
left with only a picture of his biracial child. Plaintiff also alleges that he was

denied his state-prescribed eyeglasses, which contain special UV lenses
that protect Plaintiff’s eyes, and has suffered significant eye damage as a
result. Plaintiff further alleges that he was denied “literature,” preventing him

from litigating his legal issues “to the fullest.” [Id. at 4].
Plaintiff asserts that “black people suffered the most at this all white
controlled institution” and that Defendant Sheppard’s actions “were racially
motivated at this facility that is renown for it.” [Id.]. Plaintiff alleges that he

also named as Defendants “those who condone in [Defendant Sheppard’s]
behavior, failed to intervene, and participated in the prosecution of [Plaintiff
and his] personal property were all working in concert.” [Id.].
Plaintiff generally claims violations of his rights under the First, Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments, but does not allege how

he believes the alleged conduct violates each of these rights. [Id. at 3].
Plaintiff also purports to assert a claim for racial profiling. [Id.]. For injuries,
Plaintiff claims he suffered injury to his eyes and vision, lost property, and

injury to his mental and emotional health. [Id. at 6].
For relief, Plaintiff seeks monetary and injunctive relief and punitive
damages. [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. 28 U.S.C. § 1915A.
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).
Plaintiff here alleges “racial profiling” and violations of his rights under the

First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the
Constitution. Because Plaintiff fails to state how the alleged conduct violates
these rights, the Court will address any potential claims fairly raised by
Plaintiff’s allegations. Plaintiff, however, fails to allege any facts supporting

claims under the Fifth or Sixth Amendments and the Court will dismiss these
claims.
A. Official Capacity Claims
Plaintiff purports to sue Defendants, who are all state officials, in their

individual and official capacities. [Id. 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, No. 1:19-cv-794, 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,
Plaintiff’s claims against Defendants in their official capacities do not survive

initial review and will be dismissed.
B. First Amendment
Prisoners must have meaningful access to the courts. Bounds v.
Smith, 430 U.S. 817 (1977). The “meaningful access” referred to in Bounds

does not, however, entitle a plaintiff to total or unlimited access. See Moore
v. Gray, No. 5:04-CT-918-FL, 2005 WL 3448047, at *1 (E.D.N.C. Jan. 26,
2005), aff’d, 133 Fed. App’x 913 (4th Cir. 2005) (unpublished) (citation

omitted). The right of access to the courts only requires that prisoners have
the capability of bringing challenges to sentences or conditions of
confinement. See Lewis v. Casey, 518 U.S. 343, 356-57 (1996). Moreover,

as a jurisdictional requirement flowing from the standing doctrine, the
prisoner must allege an actual injury. See id. at 349. “Actual injury” is
prejudice with respect to contemplated or existing litigation, such as the

inability to meet a filing deadline or present a non-frivolous claim. See id. A
plaintiff’s “[f]ailure to show that a ‘nonfrivolous legal claim has been
frustrated’ is fatal to his Bounds claim.” Alvarez v. Hill, 518 F.3d 1152, 1155
n.1 (9th Cir. 2008) (quoting Casey, 518 U.S. at 353).

Plaintiff here alleges that he was denied access to his personal
“literature” without which he cannot litigate his “legal issues to the fullest.”
Plaintiff does not allege that he has been prevented from bringing a

challenge to his sentence or his conditions of confinement or that he has
suffered any actual injury. Plaintiff has not stated a claim under the First
Amendment based on denial of access to the Courts. The Court will,
therefore, dismiss this claim on initial review.

C. Fourth Amendment
The Fourth Amendment protects “[t]he right of the people to be secure
in their persons … against unreasonable searches and seizures.” U.S.

CONST. amend. IV. “The applicability of the Fourth Amendment turns on
whether ‘the person involving its protection can claim a justifiable, a
reasonable, or a legitimate expectation of privacy that has been invaded by

government action.’” King v. Rubenstein, 825 F.3d 206, 214 (2016) (quoting
Hudson v. Palmer, 468 U.S. 517, 525, 104 S. Ct. 3194 (1984) (internal
quotations omitted)). “[P]risoners have no legitimate expectation of privacy

and … the Fourth Amendment’s prohibition on unreasonable searches does
not apply in prison cells.” Hudson, 468 U.S. at 530. Thus, to the extent
Plaintiff claims that his Fourth Amendment rights were violated by the
“seizure” of Plaintiff’s property, Plaintiff has failed to state a claim for relief

under the Fourth Amendment. The Court will dismiss this claim.
D. Eighth Amendment
Plaintiff claims the alleged conduct violated his rights under the Eighth

Amendment. 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), and from deliberate
indifference to a prisoner’s serious medical need, Estelle v. Gamble, 429

U.S. 97, 104 (1976).
“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). Here, taking Plaintiff’s
allegations as true and drawing all reasonable inferences in Plaintiff’s favor,
Plaintiff has not stated a claim under § 1983 for violation of the Eighth

Amendment in relation to his personal property. Plaintiff’s claim that he was
denied some of his property while in segregation does not fall within the
protections of the Eighth Amendment. As such, Plaintiff’s Eighth Amendment

claim, to the extent it is based on his conditions of confinement, does not
survive initial review.
Claims under 42 U.S.C. § 1983 based on an alleged lack of or
inappropriate medical treatment fall within the Eighth Amendment’s

prohibition against cruel and unusual punishment. Estelle v. Gamble, 429
U.S. 97, 104 (1976). To state a claim under the Eighth Amendment, a
plaintiff must show a “deliberate indifference to serious medical needs” of the

inmate. Id. “Deliberate indifference requires a showing that the defendants
actually knew of and disregarded a substantial risk of serious injury to the
detainee or that they actually knew of and ignored a detainee’s serious need
for medical care.” Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th

Cir. 2001) (citations omitted).
To be found liable under the Eighth Amendment, a prison official must
know of and consciously or intentionally disregard “an excessive risk to

inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998). “[E]ven if a prison
doctor is mistaken or negligent in his diagnosis or treatment, no constitutional

issue is raised absent evidence of abuse, intentional mistreatment, or denial
of medical attention.” Stokes v. Hurdle, 393 F. Supp. 757, 762 (D. Md. 1975),
aff’d, 535 F.2d 1250 (4th Cir. 1976).

Taking Plaintiff’s allegations as true and giving Plaintiff the benefit of
every reasonable inference, Plaintiff’s claim against Defendant Sheppard for
deliberate indifference to Plaintiff’s serious medical needs under the Eighth
Amendment survives initial review as it is not clearly frivolous. That is,

Plaintiff alleges that Defendant Sheppard deprived him of prescription
eyeglasses that provided Plaintiff with special UV protection and that Plaintiff
has suffered “significant eye damage” as a result. Plaintiff,

As to Defendants Honeycutt, Mull, and Ishee, Plaintiff alleges vaguely
that these Defendants condoned Sheppard’s actions, failed to intervene, and
worked in concert. To establish liability under 42 U.S.C. § 1983, a plaintiff
must show that the defendants “acted personally” to cause the alleged

violation. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (citation
omitted). As such, the doctrine of respondeat superior does not apply in
actions brought under § 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 694 (1978). Under Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994),
however, supervisory liability may attach under § 1983 if a plaintiff can
establish three elements: (1) the supervisor had actual or constructive

knowledge that his subordinate was engaged in conduct that posed “a
pervasive and unreasonable risk” of constitutional injury to citizens like the
plaintiff; (2) the supervisor’s response to that knowledge was so inadequate

as to show “deliberate indifference to or tacit authorization of the alleged
offensive practices”; and (3) and “affirmative causal link” between the
supervisor’s inaction and the particular constitutional injury suffered by the
plaintiff. 13 F.3d at 799 (citations omitted).

As to Defendant Honeycutt, the Superintendent of AMCI, the Court can
infer for the sake of initial review, that supervisory liability may attach where
Honeycutt could have been aware of Defendant Sheppard’s alleged actions

and failed to intervene adequately. The Court, therefore, will allow Plaintiff’s
Eighth Amendment claim, as set forth above, against Defendant Honeycutt
to survive initial review.
As to Defendant Ishee, identified as the Commissioner of the NCDPS,

the Court cannot infer an “affirmative causal link” between Ishee’s alleged
inaction, as so vaguely alleged, and the constitutional injury suffered by
Plaintiff. See Shaw, 13 F.3d at 799. Similarly, with no allegations of personal

participation by Defendant Mull, who Plaintiff alleges is a DHO, and
particularly no allegations related to any hearing, hearing decision, or
disciplinary action, the Court cannot make the leap needed to save Plaintiff’s

claims against Defendant Mull. In short, Plaintiff makes no allegations fairly
implicating any involvement by Defendants Mull or Ishee relative to this claim
or otherwise and these Defendants will be dismissed.

E. Fourteenth Amendment
Plaintiff’s Complaint impliedly presents claims under the Equal
Protection and Due Process Clauses of the Fourteenth Amendment.
1. Equal Protection

To state an equal protection claim, Plaintiff must allege that he has
been treated differently from others with whom he is similarly situated, and
that the unequal treatment was the result of intentional or purposeful

discrimination. See Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.
2001). In doing so, the plaintiff must set forth “specific, non-conclusory
factual allegations that establish an improper [discriminatory] motive.”
Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003) (quoting Trulock v.

Freeh, 275 F.3d 391, 405 (4th Cir. 2001)).
Here, Plaintiff alleges that he was a segregation inmate, that he is
African American and was denied certain property, including pictures

depicting his Caucasian fiancé and friends, that he believes that he was
racially profiled, and that the deprivation of Plaintiff’s property was racially
motivated.

Giving Plaintiff the benefit of every reasonable inference, these
allegations are sufficient to survive initial review on Plaintiff’s equal protection
claim against Defendant Sheppard in that they are not clearly frivolous. See

Green v. Maroules, 211 Fed. App’x 159, 162 (4th Cir. 2006) (finding Plaintiff’s
allegations that she was racially profiled and, consequently, falsely arrested
were sufficient to state an equal protection claim and reversing district court’s
dismissal on initial review). Plaintiff’s equal protection claim against

Defendant Honeycutt also survives for the same reason that Plaintiff’s Eighth
Amendment claim against him survived. Plaintiff’s purported separate claim
for racial profiling will, however, be dismissed. There is no independent

cause of action for racial profiling.
2. Due Process
Even “an unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedural requirements of

the Due Process Clause of the Fourteenth Amendment if a meaningful post[-
]deprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S.
517, 533 (1984). Plaintiff may bring his claim for the deprivation of his

property in state court. As such, Plaintiff has failed to state a claim for relief
under the Fourteenth Amendment’s due process clause. The Court will
dismiss this claim.

V. CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiff’s Eighth
Amendment and Fourteenth Amendment equal protection claims against

Defendants Sheppard and Honeycutt survive initial review. The Court will
dismiss Defendants Ishee and Hull and Plaintiff’s remaining claims.
In light of the Court’s determination that this case passes initial review
in accordance with this Order, 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 Defendants Sheppard and Honeycutt, who are alleged to be current
or former employees of the NCDPS.

ORDER
IT IS, THEREFORE, ORDERED that Clerk of Court shall commence
the procedure for waiver of service as set forth in Local Civil Rule 4.3 for

Defendants Sheppard and Honeycutt, who are alleged to be current or
former employees of NCDPS.
IT IS FURTHER ORDERED that all claims asserted in this matter as

to all Defendants are hereby DISMISSED with prejudice except for
Plaintiff’s Eighth Amendment and Fourteenth Amendment equal protection
claims against Defendants Sheppard and Honeycutt in their individual
capacities, which are allowed to pass initial review.
IT IS FURTHER ORDERED that Defendants Ishee and Mull are
DISMISSED as Defendants in this matter.
IT IS SO ORDERED.

Signed: November 8, 2021

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< Reidinger wey
Chief United States District Judge “AES

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10257720. Public record. Not legal advice.