Ellis v. Masscegee

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:21-cv-00271-MR

ROMUS ELLIS, )

)

Plaintiff, )

)

vs. )

)

FNU MASSCEGEE, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on initial review of the pro se

Amended Complaint.1 [Doc. 13]. The Plaintiff is proceeding in forma

pauperis. [Doc. 6].

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

North Carolina law,2 addressing an incident at the Alexander Correctional

Institution when he was allegedly forced to take unwanted medication. The

Plaintiff names as Defendants: FNU Beaver, a captain; FNU Poteat, a

1 The Plaintiff filed the Amended Complaint before the original Complaint was reviewed

for frivolity. [See Doc. 12].

2 The Plaintiff asserts § 1983 claims of “excessive force, failure to protect from assault,

retaliation, and administration of unwanted medication” under the First, Fourth, and Eighth

Amendments; and claims under North Carolina law for “assault and battery, intentional

infliction of emotional distress.” [Doc. 13 at 3].

lieutenant; FNU Masscegee, a sergeant; FNU Stanford and Jhon [sic] Doe,

correctional officers; and Kenneth E. Gagnon, a registered nurse.3 The

Plaintiff alleges that his lower back, neck, left shoulder, scalp, lower lip, and

gums were injured in the incident. [Doc. 13 at 5]. He seeks declaratory

judgment, unspecified injunctive relief, compensatory damages, costs, a jury

trial, and any additional relief that the Court deems just, proper, and

equitable. [Id.].

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

3 The Plaintiff asserts claims against Defendants Beaver, Poteat, Masscegee, and

Stanford in their official and individual capacities. [Doc. 13 at 2-3]. He does not specify

whether he is suing Defendants Doe and Gagnon in their individual capacities, official

capacities, or both. [Id. at 12].

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 contains allegations against

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 purports to sue the Defendants, who are state officials, in

their individual and official capacities.4 [Doc. 13 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, the Plaintiff’s § 1983 claims against Defendants in their

official capacities do not survive initial review and will be dismissed with

prejudice.

B. Unwanted Medication

The Plaintiff alleges that he was taken to a medical exam room where

Defendants Beaver and Gagnon told him that medication would be physically

4 The Court assume for purposes of this discussion that the Plaintiff intended to assert

claims against Defendants Doe and Gagnon in their individual and official capacities.

forced into his mouth, and the Plaintiff verbally refused; that Defendant

Poteat pulled a partition shut to shield the area from view; that Defendant

Beaver gave the order for medication to be forced into Plaintiff’s mouth; and

that Defendants Masscegee, Doe, Stanford, and Gagnon carried out that

directive. [Doc. 13 at 4, 13].

“[A] competent person has a constitutionally protected liberty interest

in refusing unwanted medical treatment.” Cruzan v. Dir., Mo. Dep’t of Health,

497 U.S. 261, 278 (1990). This liberty interest survives conviction and

incarceration. King v. Rubenstein, 825 F.3d 206, 222 (4th Cir. 2016); see

Washington v. Harper, 494 U.S. 210, 221–22 (1990) (recognizing an

individual’s “significant liberty interest in avoiding the unwanted

administration” of a specific form of medical treatment); Hogan v. Carter, 85

F.3d 1113, 1116 (4th Cir. 1996) (en banc) (citing Harper, 494 U.S. 221–22).

In this context, prison officials may override this right when treatment is

“reasonably related to legitimate penological interests.” Harper, 494 U.S. at

223 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). “This is true even when

the constitutional right claimed to have been infringed is fundamental, and

the State under other circumstances would have been required to satisfy a

more rigorous standard of review.” Id. (citation omitted).

Taking the allegations as true for the purposes of initial review, and

construing all inferences in the Plaintiff’s favor, he has stated a claim against

Defendants for the forced administration of unwanted medication. This claim

has survived initial review.

C. Excessive Force

The Plaintiff alleges that, during the forced administration of

medication, Defendant Masscegee restrained his legs; that Defendant Doe

yanked the Plaintiff backwards by his hair; that Defendant Stanford pinched

his nose shut and forced his mouth open; that Defendant Gagnon physically

forced the medication into his mouth; and that this occurred in the presence

of Defendants Poteat and Beaver. [Doc. 13 at 13].

The Eighth Amendment prohibits the infliction of “cruel and unusual

punishments,” U.S. Const. Amend. VIII, and protects prisoners from the

“unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,

319 (1986). To establish an Eighth Amendment claim for the use of

excessive force, an inmate must satisfy both an objective component–that

the harm inflicted was sufficiently serious–and a subjective component–that

the prison official acted with a sufficiently culpable state of mind. Williams v.

Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). In adjudicating an excessive

force claim, the Court must consider such factors as the need for the use of

force, the relationship between that need and the amount of force used, the

extent of the injury inflicted, and, ultimately, whether the force was “applied

in a good faith effort to maintain or restore discipline, or maliciously and

sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-

21.

The Fourth Circuit recognizes a cause of action for bystander liability

“premised on a law officer’s duty to uphold the law and protect the public

from illegal acts, regardless of who commits them.” Stevenson v. City of

Seat Pleasant, Md., 743 F.3d 411, 416-17 (4th Cir. 2014) (quoting Randall v.

Prince George’s Cnty., 302 F.3d 188, 203 (4th Cir. 2002)). A “bystander

officer” can be liable for his or her nonfeasance if he or she: “(1) knows that

a fellow officer is violating an individual’s constitutional rights; (2) has a

reasonable opportunity to prevent the harm; and (3) chooses not to act.”

Randall, 302 F.3d at 204.

Taking the allegations as true for the purposes of initial review, and

construing all inferences in the Plaintiff’s favor, he has stated a claim against

the Defendants for the use of excessive force and failure to intervene. These

claims have survived initial review.

D. Retaliation

The Plaintiff states that he is asserting a claim for “retaliation” pursuant

to § 1983. [Doc. 13 at 3].

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)). In the

prison context, retaliation claims are treated with skepticism because “[e]very

act of discipline by prison officials is by definition ‘retaliatory’ in the sense

that it responds directly to prisoner misconduct.” Adams v. Rice, 40 F.3d 72,

74 (4th Cir. 1994).

This claim is too vague and conclusory to proceed. The Plaintiff has

not supported his retaliation claim with any factual allegations whatsoever.

As such, it will be dismissed without prejudice.

E. North Carolina Claims

The Plaintiff attempts to state claims for assault and battery and the

intentional infliction of emotional distress under North Carolina law.

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.” 28 U.S.C. § 1367(a). To exercise supplemental jurisdiction, a

court must find that “[t]he state and federal claims ... derive from a common

nucleus of operative fact” where a plaintiff “would ordinarily be expected to

try them all in one judicial proceeding.” United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 725 (1966). When a district court dismisses all claims

independently qualifying for the exercise of federal jurisdiction, it “ordinarily

dismiss[es] all related state claims.” Artis v. Dist. of Columbia, 138 S.Ct. 594,

595 (2018); see § 1367(c)(3). A district court may also dismiss the related

state claims if there is a good reason to decline jurisdiction. See §

1367(c)(1), (2), and (4).

1. Assault and Battery

The Plaintiff appears to base a claim for assault and battery on the

same facts as his § 1983 excessive force claim. [Doc. 13 at 13].

North Carolina assault is an offer to show violence to another without

striking him, and battery is the carrying of the threat into effect by the infliction

of a blow. See generally Dickens v. Puryear, 302 N.C. 437, 445, 276 S.E.2d

325, 330 (1981). “Civil liability for an assault and battery is not limited to the

direct perpetrator of the act charged; it extends to any person who by any

means encourages or incites that act or aids and abets it.” Toone v. Adams,

262 N.C. 403, 409, 137 S.E.2d 132, 136 (1964) (quotation omitted).

The Plaintiff has plausibly stated assault and battery claims under

North Carolina law against the Defendants, and these claims involve the

same incidents as the excessive force and failure to intervene claims that

have passed initial review. The Court will, accordingly, exercise

supplemental jurisdiction over the Plaintiff’s assault and battery claims at this

time.

2. Intentional Infliction of Emotional Distress

The Plaintiff appears to allege that the Defendants intentionally

caused him emotional distress by forcefully administering unwanted

medication. [Doc. 13 at 4, 13].

The elements of intentional infliction of emotional distress are: “(1)

extreme and outrageous conduct, (2) which is intended to cause and does

cause (3) severe emotional distress.” Dickens, 302 N.C. at 452, 276 S.E.2d

at 335 (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.

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).

The Plaintiff has failed to state a claim for the intentional infliction of

emotional distress. Assuming arguendo that the Defendants’ conduct was

extreme and outrageous, the Plaintiff has failed to allege that the Defendants

intended to cause him severe emotional distress, or that he suffered a

disabling emotional or mental condition as a result of their actions. The

Court, accordingly, declines to exercise supplemental jurisdiction over

Plaintiff’s claim for the intentional infliction of emotional distress at this time.

IV. CONCLUSION

In sum, the Plaintiff’s § 1983 claims for the use of excessive

force/failure to intervene, and for the administration of unwanted medication

have passed initial review against Defendants Gagnon, Masscegee,

Stanford, Poteat, Doe, and Beaver in their individual capacities. The § 1983

claims against the Defendants in their official capacities are dismissed with

prejudice. The Court will exercise supplemental jurisdiction over Plaintiff’s

claims of assault and battery against the Defendants pursuant to North

Carolina law. The remaining claims are dismissed without prejudice.

The Court will allow the Plaintiff thirty (30) days to amend his

Complaint, if he so chooses, to correct the deficiencies identified in this Order

and to otherwise properly state a claim upon which relief can be granted.

Any Amended Complaint will be subject to all timeliness and procedural

requirements and will supersede the Complaint. Piecemeal amendment will

not be permitted. Should Plaintiff fail to timely amend his Complaint in

accordance with this Order, the matter will proceed only on the claims set

forth in this Order.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The claims against Defendants Gagnon, Mescegee, Stanford,

Poteat, Doe, and Beaver have passed initial review for the use

of excessive force/ failure to intervene, and the involuntary

administration of medication. The Court will exercise

supplemental jurisdiction over Plaintiff’s claims against these

Defendants for assault and battery under North Carolina law.

2. The § 1983 claims against the Defendants in their official

capacities are DISMISSED with prejudice.

3. The remaining claims are DISMISSED without prejudice.

4. The Plaintiff shall have thirty (30) days in which to amend the

Complaint in accordance with the terms of this Order. If the

Plaintiff fails to so amend his Complaint, the matter will proceed

against the Defendants as provided in this Order.

5. The Clerk of Court is respectfully instructed to mail the Plaintiff a

blank § 1983 prisoner complaint form, an Opt-In/ Opt-Out form

pursuant to the Standing Order in Misc. Case No. 3:19-mc-

00060-FDW, and a copy of this Order.

IT IS SO ORDERED. ..

Signed: January 3, 2022

Martiff Reidinger ey

Chief United States District Judge MES

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