Waldrup v. Wilde

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:20-cv-00393-MR

ROBERT A. D. WALDRUP, )

)

Plaintiff, )

)

vs. )

)

ANTHONY WILDE, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

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

10].

I. BACKGROUND

The pro se Plaintiff filed this action pursuant to 42 U.S.C. § 1983

regarding conditions he allegedly experienced at the Craggy Correctional

Center.1 [Doc. 1]. The Court dismissed the Complaint on June 16, 2021 for

failure to state a claim and granted the Plaintiff 30 days to amend. [Doc. 11].

The Amended Complaint is now before the Court on initial review.

1 The Plaintiff is presently incarcerated at the Marion Correctional Institution.

The Plaintiff asserts claims for “[t]he right to health (protection of),

safety; freedom from fear of retaliation and cruel/unusual punishment”

against: Anthony Wilde, the Craggy CC superintendent; Dawn MacMahan,

the Craggy CC assistant superintendent of programs; and “Et Al. – Any other

unknown persons responsible,” in their official capacities. [Doc. 12 at 2-3].

For damages, the Plaintiff requests “$1 plus the filing fee in punitive

damages” and the Defendants’ removal or demotion. [Doc. 12 at 15].

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

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).

A. Parties

The Complaint refers to individuals other than the Plaintiff who, he

asserts, have been placed at risk of COVID-19 infection and/or contracted

COVID-19. The Plaintiff’s status as a pro se prisoner precludes him from

making claims on behalf of anyone besides himself. 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, they are dismissed.

B. Official Capacity Claims

The Plaintiff purports to sue Defendants, who are state officials, in their

official capacities. 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).

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

against Defendants in their official capacities do not survive initial review and

will be dismissed.

C. Conditions of Confinement

Even if the Plaintiff had attempted to assert claims against the

Defendants in their individual capacities, his allegations would be insufficient

to state a claim. The Plaintiff expresses his dissatisfaction with COVID-19

precautions at Craggy CC which made him fear contracting COVID-19 based

on his preexisting health conditions. [Doc. 12-1 at 1-4]. He also alleges that

hot water burned him at his kitchen job. [Doc. 12-1 at 2].

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).

With regards to COVID-19, the Plaintiff complains that there was

insufficient social distancing; that there was insufficient distance between

regular and quarantined inmates’ housing blocks; that staff and offenders

were moved within the facility; and that his kitchen work required him to

disinfect for COVID-19 and work with other staff and inmates. [Doc. 12-1 at

1-4]. “[T]he inability ... to practice social distancing at all times does not,

without more, demonstrate that defendants have deliberately disregarded

these risks.”2 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

2 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 Sept. 24,

2021).

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.”). Nor does the alleged failure to adhere to policies and

procedures at all times, by itself, state a § 1983 claim. 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”). His 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.

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 him any serious or

significant physical or emotional injury. See generally Hope v. Warden, 972

F.3d 310, 330 (3d Cir. 2020 (rejecting detainee habeas petitioners’

arguments that exposure to COVID-19 was per se unconstitutional and that

the government must entirely eliminate their risk of exposure in order to

comply with constitutional mandates); Blackwell v. Covello, 2021 WL

915670, at *3 (E.D. Cal. March 10, 2021) (plaintiffs “must provide more than

generalized allegations that the [defendants] ha[ve] not done enough to

control the spread” of COVID-19); Reinhardt, 2021 WL 82894, at *6.

With regards to the Plaintiff’s allegation that he was burned in a kitchen

accident, the Plaintiff has failed to attribute the incident to the Defendants’

actions or inactions. See Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990)

(conclusory allegations, unsupported by specific allegations of material fact

are not sufficient). Nor does the Plaintiff allege any facts to suggest that the

incident was anything more than an accident the result of negligence. See

Daniels, 474 U.S. at 328.

The Plaintiff has failed to state a plausible Eighth Amendment claim

regarding COVID-19 or the conditions of his kitchen job. Accordingly, these

claims will be dismissed without prejudice.

D. Retaliation

The Plaintiff alleges that “retaliatory threats arose” when he asked

Defendant MacMahan to opt out of his kitchen work assignment. [Doc. 12-

1 at 1].

The First Amendment right to free speech “includes not only the

affirmative right to speak, but also the right to be free from retaliation by a

public official for the exercise of that right.” Suarez Corp. v. McGraw, 202

F.3d 676, 685 (4th Cir. 2000). Prison officials may not retaliate against an

inmate for exercising a constitutional right. See Hudspeth v. Figgins, 584

F.2d 1345, 1347 (4th Cir.1978). In order to state a colorable retaliation claim

under § 1983, a plaintiff must allege: “(1) []he engaged in protected First

Amendment activity, (2) the defendant[] took some action that adversely

affected [his] First Amendment rights, and (3) there was a causal relationship

between [his] protected activity and the defendant[’s] conduct.” Martin v.

Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors &

Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). A plaintiff

suffers adverse action if the allegedly retaliatory conduct “would likely deter

a person of ordinary firmness from the exercise of First Amendment rights.”

Id. A plaintiff “must show that the defendant’s conduct resulted in something

more than a ‘de minimis inconvenience’ to her exercise of First Amendment

rights.” Constantine, 411 F.3d at 500 (quoting ACLU of Md., Inc. v. Wicomico

Cnty., Md., 999 F.2d 780, 786 n.6 (4th Cir. 1993)). This objective inquiry

examines the specific facts of each case, taking into account the actors

involved and their relationship. Balt. Sun Co. v. Erlich, 437 F.3d 410, 416

(4th Cir. 2006). The Plaintiff’s actual response to retaliatory conduct provides

some evidence of the tendency of that conduct to chill First Amendment

activity.” Constantine, 411 F.3d at 500.

The Plaintiff’s request to opt out of the kitchen job appears to qualify

as free speech exercise. However, Plaintiff fails to identify any adverse

action that Defendant MacMahan took against him as a result of this speech.

His allusion to “retaliatory threats” [Doc. 12-1 at 1] is too vague and

conclusory to state a retaliation claim. Accordingly, the Plaintiff’s retaliation

claim is dismissed without prejudice.

IV. CONCLUSION

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

therefore, the Amended Complaint will be dismissed and this case will be

closed.

ORDER

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

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

for seeking damages against immune defendants pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii)-(iii).

The Clerk is respectfully instructed to close this case.

iT IS sO ORDERED... October 27, 2021

Martiff Reidinger oy

Chief United States District Judge wally

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