Grady v. Rogers

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:20-cv-00601-MR

TRACEY TERRELL GRADY, )

)

Plaintiff, )

)

vs. )

)

D. ROGERS, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

Complaint. [Doc. 14]. The Plaintiff is proceeding in forma pauperis. [Doc.

10].

The pro se Plaintiff filed the Complaint pursuant to 42 U.S.C. § 1983

addressing incidents that allegedly occurred at the Union County Jail (“UCJ”)

where he is a pretrial detainee on charges including second-degree

kidnapping and forcible rape.1 [Doc. 1]. Before the Complaint was screened

for frivolity, the Plaintiff filed a “Motion to Legally Amend … [and]

Consolidate…” which was granted, and the Amended Complaint was

1 This information was gleaned from the Union County Sheriff’s Office website. See

http://sheriff.co.union.nc.us/jailinmates.aspx (last accessed Dec. 6, 2021); Fed. R. Evid.

201.

accepted as timely filed. [Docs. 13, 17]. The Amended Complaint is now

before the Court for initial review.

In the Amended Complaint, the Plaintiff names as Defendants in their

individual capacities: Sheriff Eddie Cathey; and the following “Jail Staff:” D.

Rogers, a captain; J. Dennis, a lieutenant; K. Martin, a corporal;2 Megan

Kimball, V.L. Adcock, B.W. Purser, and J. Philemon,3 sergeants; and J.R.

Strickland, Z.R. Panek, C. McSheehan, A. Knox, FNU Grooms, FNU

Hamilton, D. Rucker, H.W. Younts,4 FNU Keziah, T. Knotts, D. Burns, FNU

Dorlando, C.A. Eubanks, C.T. Kiker, officers. [Doc. 14 at 1, 8-10]. He

asserts claims of “cruel and unusual punishment;” “failure to shield and

protect;” “assault and excessive force;” “due process violation[s];” “mail

stop;” and “deliberate indifference base[d] on racial discrimination.” [Doc. 14

at 9]. The Plaintiff alleges that he sustained physical and emotional injuries

as a result of the Defendants’ actions and is in imminent danger of being

2 The Plaintiff also refers to this Defendant as “Corporal K. Morton.” [Doc. 14 at 11].

3 The Plaintiff also refers to this Defendant as “Sgt. Philomine” and “Sgt. Philomon.” [Doc.

14-1 at 33].

4 The Plaintiff also refers to this Defendant as “Younths.” [Doc. 14-1 at 33].

killed or assaulted again. [Doc. 14 at 3, 11]. He seeks compensatory and

punitive damages, injunctive relief,5 and a jury trial. [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 “(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 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

5 The Plaintiff seeks “injunctive relief on jail policy file by Sheriff Eddie Cathey,” and the

firing and replacement of Defendants Rogers and Dennis. [Doc. 14 at 11]. However, the

claim for injunctive relief is vague and conclusory in that the Plaintiff does not identify the

specific jail policy that he is challenging. Further, the firing or demotion of employees is

a personnel issue beyond the jurisdiction of the Court. See Van Houten v. Gaskill, No.

05-3377, 2006 WL 749410 (D. Kan. March 22, 2006).

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 refers to individuals who are not

named as Defendants in the caption as required by the Federal Rules of Civil

Procedure. Fed. R. Civ. P. 10(a). Such claims are nullities and they are

dismissed without prejudice. 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 complaint but who

were served).

Further, the Plaintiff uses pronouns and vague terms, such as “they”

and “staff,” rather than identifying the individual(s) involved in each

allegation.6 Such claims are too vague and conclusory to proceed insofar as

6 For instance, the Plaintiff alleges that he was placed in a filthy suicide holding cell by

“Jail Staff,” but the Court is unable to determine to which Defendant(s) this allegation

refers. [Doc. 14-1 at 30].

the Court is unable to determine the Defendant(s) to whom these allegations

refer. See Fed. R. Civ. P. 8(a)(2) (requiring a “short and plain statement of

the claim showing that the pleader is entitled to relief”); Simpson v. Welch,

900 F.2d 33, 35 (4th Cir. 1990) (conclusory allegations, unsupported by

specific allegations of material fact are not sufficient); Dickson v. Microsoft

Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege facts,

directly or indirectly, that support each element of the claim). Further, to the

extent that these allegations refer to non-parties, they are nullities.

Londeree, 68 F.Supp.2d 718. Therefore, these claims are dismissed without

prejudice.

B. Excessive Force

The Plaintiff alleges that on July 6, 2021, Defendants Eubanks and

Kiker used excessive force against him in separate incidents,7 and that

Defendant Martin failed to intervene. [Doc. 14 at 2, 11]. He further alleges

that on on July 28, 2020, Defendants McSheehan, Knox, Grooms, and

Hamilton8 “beat [Plaintiff] down” after he started yelling and kicking his cell

7 The Plaintiff alleges that the incident with Defendant Kiker included five other staff

members. It is unclear whether this refers to other Defendants, or to individuals who are

not named as Defendants in this case.

8 In another section of the Amended Complaint, the Plaintiff alleges that, on July 28, 2020,

he was assaulted by Defendant Hamilton and five other officers who would not give their

names. [Doc. 14-1 at 40]. It is unclear whether these “other officers” include Defendants

McSheehan, Knox, and Grooms, and/or other Defendants in this case.

door, and that Defendant Hamilton “abused [Plaintiff] sexually, and violently,

touching [him] unappropriately [sic] on [his] private parts” while Plaintiff was

being held down. [Doc. 14-1 at 30].

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). Considerations that bear on the reasonableness or

unreasonableness of the force include: the relationship between the need for

the use of force and the amount of force used; the extent of the plaintiff’s

injury; any effort made by the officer to temper or limit the amount of force;

the severity of the security problem at issue; the threat reasonably perceived

by the officer; and whether the plaintiff was actively resisting. Id.

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

construing all inferences in Plaintiff’s favor, the Plaintiff has plausibly alleged

that Defendants Eubanks, Grooms, Hamilton, Kiker, Knox, and McSheehan

used unreasonable force against him, and that Defendant Martin failed to

intervene. These claims have passed initial review.

C. Failure to Protect

The Plaintiff alleges that on February 24, 2020, Defendants Purser and

Philemon witnessed an inmate strike the Plaintiff’s face with his fist but failed

to act [Doc. 14 at 10-11; Doc. 14-1 at 33]; that Defendants Keziah and

Dorlando informed other inmates that the Plaintiff is a rapist,9 and that

Defendants Adcock and Panek refused to act [Doc. 14-1 at 6]; that on June

28, 2020, the Plaintiff was placed in a cell with an inmate who was a

registered sex offender and who sexually assaulted the Plaintiff10 [Doc. 14-1

at 33]; Defendants Philemon and Dennis subsequently returned the Plaintiff

to the cell block where the assault incident had occurred,11 knowing that the

9 Although the Plaintiff states that Defendants Dorlando and Keziah “retaliated against

[his] rights,” this claim is liberally construed as a failure-to-protect claim because he

appears to assert that these Defendants purposefully placed him in danger by revealing

this information to other inmates. [Doc. 14-1 at 6].

10 It is unclear to whom the Plaintiff attributes this housing placement.

11 It is unclear whether the Plaintiff is alleging that inmate Jeter was still located in that

cell block, or whether the danger was from gang members who had approached the

Plaintiff at the time of the Jeter incident. [See Doc. 14 at 10-11].

Plaintiff would be hurt or killed, and that the Plaintiff was subsequently

assaulted by another inmate12 [id.]; and that Defendants Martin, Rogers, and

Dennis knew that another inmate had placed a “hit” on the Plaintiff’s life13 but

Martin denied Plaintiff protective custody, and consequently the Plaintiff

feared for his life [Doc. 14-1 at 40].

The Eighth Amendment14 imposes on prison officials a duty to “protect

prisoners from violence at the hands of other prisoners.” Farmer v. Brennan,

511 U.S. 825, 833 (1994) (internal quotations omitted). To obtain relief under

§ 1983 on a claim of failure to protect, an inmate must show: (1) “serious or

significant physical or emotional injury” resulting from that failure; and (2) the

12 In response, the Plaintiff hit the inmate over the head with a plastic mop handle in “self-

defense.” [Doc. 14-1 at 33].

13 According to the Plaintiff, the victim in his criminal case arranged in a jail phone call for

this inmate, who was her boyfriend, to kill the Plaintiff. [Doc. 14-1 at 40].

14 Because the Plaintiff was a pre-trial detainee at the relevant times, his deliberate

indifference claims are properly brought under the Fourteenth Amendment rather than

the Eighth Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983).

However, the Fourth Circuit has long applied the Eighth Amendment deliberate

indifference standard to pretrial detainees’ deliberate indifference claims. See Moss v.

Harwood, __ F.4th __, 2021 WL 5702989, at *7, n.4 (4th Cir. Dec. 2, 2021) (noting that,

“under Kingsley…, pretrial detainees bringing excessive force claims under the

Fourteenth Amendment are no longer required to satisfy the analogous subjective

component that governs the Eighth Amendment excessive force claims of convicted

prisoners … [however] the Supreme Court has not extended Kingsley beyond the

excessive force context to deliberate indifference claims, … and neither has our

court….”); Mays v. Sprinkle, 992 F.3d 295, 300-02 (4th Cir. 2021) (declining to decide

whether a pretrial detainee must satisfy the subjective component of the Eight

Amendment deliberate indifference standard).

prison officials had a “sufficiently culpable state of mind,” which in this context

is deliberate indifference. Farmer, 511 U.S. at 834. A prison official is

“deliberately indifferent to a substantial risk of harm to a [prisoner] when that

[official] ‘knows and disregards’ the risk.” Parrish ex rel. Lee v. Cleveland,

372 F.3d 294, 302 (4th Cir. 2004) (quoting Farmer, 511 U.S. at 837). “It is

not enough to prove that the official should have known of the risk; instead,

‘the official must both be aware of the facts from which the inference could

be drawn that a substantial risk of harm exists, and he should draw the

inference.’” Kartman v. Markle, 582 F. App’x 151, 153 (2014) (quoting

Farmer, 511 U.S. at 837). A showing of negligence does not rise to the level

of deliberate indifference. Davidson v. Cannon, 474 U.S. 344, 347-48

(1986).

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

construing all inferences in the Plaintiff’s favor, the Plaintiff has minimally

stated a claim that Defendants Dennis and Rogers failed to protect him from

the planned “hit” by another inmate.15 However, the remaining allegations

15 The Plaintiff’s allegations regarding the Defendants’ “sufficiently culpable state of mind”

are that the Plaintiff himself informed the Defendants of the alleged “hit” place on the

Plaintiff by his alleged victim, and that the Defendants did not investigate. Giving the

Plaintiff the benefit of very generous inferences, these allegations pertain only to

Defendants Rogers and Denis, but not Defendant Martin. Moreover, the Plaintiff makes

no plausible allegations as to how the Plaintiff learned of this proposed “hit” so as to make

his telling the Defendants sufficiently credible to warrant any action. The Plaintiff’s

allegations stretch the plausibility requirements for pleading to near their limit, but the

are insufficient to proceed, as the Plaintiff has failed to allege that he suffered

any serious or significant physical or emotional injury as a result of the

Defendants’ actions or inactions. Therefore, the failure to protect claims

have survived initial review as to Defendants Dennis and Rogers, and the

remaining failure to protect claims are dismissed without prejudice.

D. Deliberate Indifference to a Serious Medical Need

The Plaintiff alleges that Defendants Purser and Philemon failed to

provide timely medical care after another inmate punched him on February

24, 2020 [Doc. 14 at 10-11]; that Defendant Martin failed to provide

assistance after the beating on July 6, 2020 [id. at 2, 11]; that Defendants

Knotts and Burns confiscated the Plaintiff’s medically approved diabetic

socks on April 9, 2020, Defendants Eubanks and Purser failed to correct the

issue, and the Plaintiff’s feet and toes were injured as a result [id. at 18]; that

Defendants Eubanks, Keziah and Dorlando failed to provide timely medical

care following the Plaintiff’s “violent sexual assault” by his cellmate on July

12, 2020 [Doc. 14-1 at 16].

The Eighth Amendment encompasses a right to medical care for

serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 103-04 (1976).

Court will allow this claim to pass initial review with respect to Defendants Rogers and

Denis. The Court expresses no opinion as to whether the pleading comports with Rule

12(b)(6).

To state a claim for deliberate indifference to a serious medical need, a

plaintiff must show that he had serious medical needs and that the defendant

acted with deliberate indifference to those needs. Heyer v. United States

Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (citing Iko v. Shreve,

535 F.3d 225, 241 (4th Cir. 2008)). A “serious medical need” is “one that has

been diagnosed by a physician as mandating treatment or one that is so

obvious that even a lay person would easily recognize the necessity for a

doctor’s attention.” Iko, 535 F.3d at 241 (internal quotation marks omitted).

To constitute deliberate indifference to a serious medical need, “the

treatment [a prisoner receives] must be so grossly incompetent, inadequate,

or excessive to shock the conscience or to be intolerable to fundamental

fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled on

other grounds by Farmer, 511 U.S. at 825. However, mere negligence or

malpractice does not violate the Eighth Amendment. Miltier, 896 F.2d at 852.

Further, “mere ‘[d]isagreements between an inmate and a physician over the

inmate’s proper medical care’ are not actionable absent exceptional

circumstances.” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)

(quoting Wright v. Collins, 766 F.2d 841, 840 (4th Cir. 1985)).

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

construing all inferences in the Plaintiff’s favor, the Plaintiff has plausibly

alleged that Defendants Burns, Dorlando, Eubanks, Keziah, Knotts, Martin,

Philemon, and Purser were deliberately indifferent to a serious medical need.

These claims have passed initial review.

E. Due Process

The Plaintiff appears to allege that Defendant Burns falsely wrote the

Plaintiff up, Defendant Martin placed him in 20-day lockup despite knowing

he had medical restrictions and was disabled, and Defendant Philemon

refused to hear his appeal with regard to the April 9, 2020 sock incident [Doc.

14 at 18; 14-1 at 40]; that Defendants Keziah and Dorlando took the Plaintiff

to lockup after his cellmate sexually assaulted him on July 12, 2020, even

though Plaintiff was the victim [Doc. 14-1 at 16]; that “Corporal K. Martin, was

deliberate indifferent advising officer. Gordon, upon Disciplinary all my

appeals to Captain. Rogers and L.T. Dennis, denied” [Doc. 14-1 at 15]

(uncorrected); Defendant Younts placed the Plaintiff in lockup for 18016 days

following the July 27, 2020 asssault incident, even though the Plaintiff acted

in self-defense [Doc. 14-1 at 33]; that Defendants Strickland and Kimball

placed the Plaintiff on 30-day lockup without a hearing, disciplinary charge,

or any evidence after another inmate falsely accused him of assault on July

16 In another section of the Amended Complaint, the Plaintiff alleges that he received 220

days in lockup for the Scuro incident. [Doc. 14-1 at 15].

2, 2021 [Doc. 14-1 at 36]; and that Defendants Martin and Kimball placed

him on close security lockup and removed his privileges after he refused an

improper direct order on July 6, 2021 [Doc. 14 at 2-3].

Because pretrial detainees have not been convicted of crimes, they

retain a liberty interest to remain free from punishment. Dilworth v. Adams,

841 F.3d 246, 251 (4th Cir. 2016) (citing Bell v. Wolfish, 441 U.S. at 535-37).

A pretrial detainee is thus entitled to procedural due process in connection

with any “punishment” imposed at a detention facility. Id. at 252. A restriction

is “punishment” if it was “(1) imposed with an expressed intent to punish or

(2) not reasonably related to a legitimate nonpunitive governmental

objective, in which case an intent to punish may be inferred.” Williamson v.

Stirling, 912 F.3d 154, 178 (4th Cir. 2018) (quoting Slade v. Hamptons Roads

Reg’l Jail, 407 F.3d 243, 251 (4th Cir. 2005)). Where a pretrial detainee is

placed in disciplinary segregation, he is entitled to “notice, a hearing, and a

written explanation of the resulting decision.” Id. at 175; see Dilworth, 841

F.3d at 253; Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974). Where a

pretrial detainee is placed in administrative segregation, he must receive at

least an informal, non-adversary review of the information supporting

segregation within a reasonable time. Williamson, 912 F.3d at 185; see

Dilworth at 255 (a pretrial detainee’s placement in administrative segregation

pending a disciplinary hearing “presupposes that there is, in fact, a hearing

in connection with the final imposition of disciplinary action….”).

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

construing all inferences in Plaintiff’s favor, the Plaintiff has plausibly stated

due process claims against Defendants Burns, Dorlando, Keziah, Kimball,

Martin, Strickland, and Younts. However, the Plaintiff’s allegations against

Defendants Dennis, Gordon, Philemon, and Rogers fail to state a claim. The

Plaintiff appears to allege that Defendants Dennis, Rogers, and Philemon

refused or denied his disciplinary appeals. However, the process required

for imposing disciplinary sanctions does not include an appeal, so the denial

of such fails to state a § 1983 claim. See Wolff, 418 U.S. at 565 (setting forth

the process required for imposing disciplinary sanctions, which does not

include a disciplinary appeal); Chambers v. Wilson, No. 1:15-cv-46, 2016 WL

775779, at *4 (E.D. Va. Feb. 24, 2016) (“a prisoner has no federal due

process rights in the [disciplinary] appeal process.”); Brown v. Angelone, 938

F.Supp. 340, 345 (W.D. Va. 1996) (holding that violations of prison

disciplinary appeal procedures do not implicate federal due process rights).

The allegations against Defendants Gordon are too vague, conclusory, and

confusing to state a claim. See Fed. R. Civ. P. 8(a). Accordingly, the

Plaintiff’s due process claims have passed initial review against Defendants

Burns, Dorlando, Keziah, Kimball, Martin, Strickland, and Younts, and the

remaining claims are dismissed without prejudice.

F. Retaliation

The Plaintiff alleges that Defendants Kiker and Eubanks threatened

him, Eubanks punched him, and Defendants Martin and Kimball placed him

on lockup and removed privileges in retaliation for the Plaintiff’s refusal of an

improper direct order [Doc. 14 at 2-3]; that Defendants Younts, Martin, and

Kimball threatened the Plaintiff and opened his legal mail in retaliation for

filing grievances [id. at 3]; that Defendant Younts threatened to “trash” the

Plaintiff’s legal mail if he continued filing grievances [Doc. 14-1 at 6]; that

Defendants Knotts, Burns, Eubanks, Purser, and Martin took away the

Plaintiff’s medically approved socks and placed him in lockup in retaliation

for filing grievances [id. at 18]; and that Defendant Martin refused to provide

the Plaintiff with medical assistance while he was injured in retaliation for

filing grievances and lawsuits [Doc. 14 at 11].

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).

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

construing all inferences in the Plaintiff’s favor, the Plaintiff has plausibly

alleged that Defendants Burns, Eubanks, Kiker, Kimball, Knotts, Martin,

Purser, and Younts retaliated against him. These claims have passed initial

review.

G. Mail

The Plaintiff alleges that Defendants Kimball, Martin and Younts

stopped the Plaintiff’s outgoing mail, and stopped and opened his legal mail

[Doc. 14 at 2-3; Doc. 14-1 at 6-7].

As a general matter, prisoners have the right to both send and receive

mail. See Thornburgh v. Abbott, 490 U.S. 401, 408 (1989); Pell v. Procunier,

417 U.S. 817 (1974). Restrictions on this right are valid if they are

reasonably related to legitimate penological interests. Turner v. Safley, 482

U.S. 78, 89 (1987) (setting forth a four-factor test to determine whether a

prison policy is valid); see Haze v. Harrison, 961 F.3d 654, 658 (4th Cir. 2020)

(noting that Turner applies to both convicted prisoners and pretrial

detainees). For instance, a prisoner’s First Amendment interest in

corresponding does not preclude prison officials from examining mail to

ensure that it does not contain contraband. Wolff, 418 U.S. at 576. “[L]egal

mail is widely recognized to be privileged and confidential—even in the

context of prisons—which suggests that an incarcerated person’s

expectation of privacy in his legal mail is one ‘that society is prepared to

consider reasonable.’” Haze, 961 F.3d at 660 (quoting United States v.

Catellanos, 716 F.3d 828, 832 (4th Cir. 2013)); see King v. Rubenstein, 825

F.3d 206, 215 (4th Cir. 2016) (“nothing in Hudson17 indicates the Supreme

court intended to abrogate a prisoner’s expectation of privacy beyond his

cell.”). A prison rule requiring that legal mail be opened in the presence of

17 Hudson v. Palmer, 468 U.S. 517 (1984) (holding that an inmate has no reasonable

expectation of privacy, and thus no Fourth Amendment protection, in his prison cell).

the inmate, without being read, does not infringe on a prisoner’s

constitutional rights. See Wolff, 418 U.S. at 575–77.

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

construing all inferences in Plaintiff’s favor, the Plaintiff has plausibly alleged

that Defendants Kimball, Martin and Younts interfered with his mail. This

claim has passed initial review.

H. Access to the Courts

The Plaintiff alleges that, by breaking the seal on his legal mail,

Defendant Younts “deni[ed] [him] legal access to counsel and the courts.”

[Doc. 14-1 at 6].

The Supreme Court stated in Bounds v. Smith, 430 U.S. 817 (1977),

that prisoners must have meaningful access to the courts. 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

requires only 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).

The Plaintiff fails to allege that he suffered any actual injury as a result

of Defendant Younts’ actions, and therefore, he has failed to state a plausible

claim that he was denied access to the courts. This claim will be dismissed

without prejudice.

I. Conspiracy

The Plaintiff appears to allege that Defendant Martin conspired to stop

the Plaintiff’s outgoing mail and phone privileges [Doc. 14 at 2; Doc. 14-1 at

7]; that Defendants Rogers and Dennis “conspired together illegally a crime

that violated [Plaintiff’s] civil rights” [Doc. 14-1 at 7]; that Defendants Purser

and Philemon conspired to fail to protect the Plaintiff from other inmates

[Doc. 14 at 10]; that Defendants Dorlando and Keziah conspired to inform

other inmates that the Plaintiff is a rapist [Doc. 14-1 at 6]; Defendants Panek

and Adcock deliberately omitted information from their report on the July 28,

2020 use of force in a “conspiracy, and a cover up” [Doc. 14-1 at 30]; and

that there was an “ongoing conspiracy” among Defendants Martin, Dennis,

Rogers, Hamilton, Gordon, Rogers, Dennis to harass the Plaintiff based on

his criminal charges [Doc. 14-1 at 15].

To establish a civil conspiracy under § 1983, a plaintiff must show that

the defendants “acted jointly in concert and that some overt act was done in

furtherance of the conspiracy which resulted in [plaintiff's] deprivation of a

constitutional right.” Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir.

1996); see Hafner v. Brown, 983 F.2d 570, 576 n. 6 (4th Cir. 1992). An

essential element in any conspiracy to deprive the plaintiff of his

constitutional rights is an agreement to do so among the alleged co-

conspirators. Ballinger v. North Carolina Ag. Extension Serv., 815 F.2d 1001

(4th Cir. 1987). Without such a meeting of the minds, the independent acts

of two or more wrongdoers does not amount to a conspiracy. Murdaugh

Volkswagen v. First Nat’l Bank, 639 F.2d 1073 (4th Cir. 1981). Where the

complaint makes only conclusory allegations of a conspiracy under § 1983

and fails to demonstrate any agreement or meeting of the minds among the

defendants, the court may properly dismiss the complaint. See Woodrum v.

Woodward County Okl., 866 F.2d 1121 (9th Cir. 1989); Cole v. Gray, 638

F.2d 804 (5th Cir. 1981). General allegations that defendants entered into an

agreement, without sufficiently alleging plausible grounds to infer such an

agreement, fail to state a § 1983 conspiracy claim. Wiggins v. 11 Kew

Garden Court, 497 F. App’x 262 (4th Cir. 2012).

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

construing all inferences in Plaintiff’s favor, the Plaintiff has plausibly alleged

that Defendants Adcock and Panek conspired against him by deliberately

omitting information from their report on the July 28, 2020 use of force.

However, the remaining allegations are too vague and conclusory to

establish that any meeting of the minds occurred to deprive the Plaintiff of a

constitutional right. Therefore, the Plaintiff’s conspiracy claims have passed

initial review against Defendants Panek and Adcock, and are dismissed

without prejudice as to the other Defendants.

J. Grievances

The Plaintiff alleges that Defendant Rogers read (and presumably

denied) all of his grievances, and that Defendant Dennis rejected his

grievance appeals. [Doc. 14-1 at 40].

“[T]he 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). “An inmate thus cannot bring

a § 1983 claim alleging denial of a specific grievance procedure.” Booker v.

S.C. Dep’t of Corr., 885 F.3d 533, 541 (4th Cir. 2017).

Because the Plaintiff had no right to the grievance procedure, his

allegations that his grievances and grievance appeals were denied fails to

rise to the level of a constitutional violation. Therefore, the Plaintiff’s claims

relating to the grievance procedure will be dismissed.

K. Investigations and Criminal Charges

The Plaintiff appears to allege that Defendants Adcock, Dennis,

Dorlando, Eubanks, Kimball, Martin, Panek, Rogers, and Strickland failed to

investigate various incidents that occurred at UCJ [Doc. 14 at 2; Doc. 14-1

at 6, 15-16, 22, 30, 36] and that Defendants Eubanks, Kimball, Martin,

Philemon, Purser, and Strickland failed to allow the Plaintiff to file criminal

charges against staff and inmates who assaulted him [Doc. 14 at 2, 10-11;

Doc. 14-1 at 22, 36].

“The Due Process Clauses generally confer no affirmative right to

governmental aid, even where such aid may be necessary to secure life,

liberty, or property interests of which the government itself may not deprive

the individual.” See generally DeShaney v. Winnebago County Dep’t of Soc.

Servs., 489 U.S. 189, 196 (1989). Accordingly, there is no right to have an

investigation conducted by the government, including a PREA investigation.

See, e.g., Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002) (arrestee

had no constitutional right to internal investigation of excessive force claim);

Watson v. Smith, No. 5:18-cv-142, 2019 WL 1460263 (W.D.N.C. April 2,

2019) (“There is no private cause of action for a PREA violation and a

prisoner has no constitutional right to a PREA investigation); Wise v. Wilson,

No. 1:15-cv-1705, 2017 WL 71656 (E.D. Va. Jan 6, 2017) (prisoner has no

constitutional right to have a PREA complaint investigated). Further, “[n]o

citizen has an enforceable right to institute a criminal prosecution.” Lopez v.

Robinson, 914 F.2d 486, 494 (4th Cir. 1990) (citing Linda R.S. v. Richard D.,

410 U.S. 614, 619 (1973)). Accordingly, “an inmate does not state a

constitutional claim by alleging that he was denied the right to press criminal

charges.” Brown v. Rowan Cnty. Det. Ctr., No. 1:09-cv-573, 2012 WL

5338574, at *6 (M.D.N.C. Oct. 30, 2012).

The Plaintiff had no right to have any investigation conducted on his

behalf, or to press criminal charges against the individuals who allegedly

assaulted him. Accordingly, these claims are dismissed for failure to state a

claim upon which relief can be granted.

L. Jail Policy

The Plaintiff alleges that various incidents violated UCJ policy,

including staff’s failure to investigate various incidents, Plaintiff’s lockup for

220 days, and staff’s failure to place another inmate in lockup following his

fight with the Plaintiff [Doc. 14-1 at 15, 36].

The Plaintiff’s allegation of various policy violations does not rise to the

level of a § 1983 claim absent a plausible allegation of an underlying

constitutional violation. See generally 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”).

Therefore, the Plaintiff’s claims that various Defendants violated prison

policy, standing alone, are dismissed.

M. Equal Protection

The Plaintiff alleges that Defendants Dennis, Philemon, and Purser

intentionally failed to protect him from an assault from another inmate

because of racial bias [Doc. 14-1 at 33]; that Defendant Martin failed to

provide medical assistance following the July 6, 2021 use of force because

of “bias” [Doc. 1 at 11];that Defendants Dennis, Gordon, Martin, and Rogers

targeted him, harassed him, and treated him “biasly” based on his “pending

charges” [Doc. 14-1 at 15]; that Defendants Kimball and Strickland “biasly

[sic] … fail[ed] to follow legal procedures” when another inmate accused the

Plaintiff of assault [Doc. 14-1 at 36]; and that Defendants Dorlando and

Keziah targeted him, harassed him, and failed to provide medical care

following the Plaintiff’s sexual assault because the Plaintiff was charged with

rape and kidnapping [Doc. 14-1 at 16].18

To establish an equal protection violation, a plaintiff first must

demonstrate 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. 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)).

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

construing all inferences in Plaintiff’s favor, the Plaintiff has plausibly alleged

that Defendants Dennis, Dorlando, Keziah, Martin, Philemon, and Purser

violated the Plaintiff’s right to equal protection. However, the allegations

against Defendants Gordon, Kimball, Strickland, and Rogers fail to

demonstrate that these Defendants treated the Plaintiff differently from

others who are similarly situated, or that this unequal treatment was the

result of purposeful discrimination. See Henslee v. Lewis, 153 F. App’x 179,

18 The Plaintiff also generally alleges “deliberate indifferences [sic] based on racial

discrimination,” but he fails to attribute this allegation to any Defendant. [Doc. 14 at 9].

180 (4th Cir. 2005) (“Mere threats or verbal abuse by prison officials, without

more, do not state a cognizable claim under § 1983). Accordingly, the equal

protection claims against Defendants Dennis, Dorlando, Keziah, Martin,

Philemon, and Purser have survived initial review, but the remaining claims

are dismissed without prejudice.

N. Supervisory Liability

The Plaintiff appears to assert supervisory claims against Defendants

Cathey, Dennis, Adcock, Martin, Rucker, and Rogers, who knew that the

Plaintiff was being retaliated against and failed to act [Doc. 14 at 3; Doc. 14-

1 at 6-7. 15] and that Defendants Adock, Cathey, Dennis, and Rucker knew

about the interference with the Plaintiff’s mail and failed to act [Doc. 14 at 2-

3; Doc. 14-1 at 6-7].

“It is well settled that ‘supervisory officials may be held liable in certain

circumstances for the constitutional injuries inflicted by their subordinates.’”

Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001) (quoting Shaw v.

Stroud, 13 F.3d 791, 798 (4th Cir. 1994)). A supervisor can be liable where

(1) he knew that his subordinate “was engaged in conduct that posed a

pervasive and unreasonable risk of constitutional injury;” (2) his response

showed “deliberate indifference to or tacit authorization of the alleged

offensive practices;” and (3) there was an “affirmative causal link” between

her inaction and the constitutional injury.” Shaw, 13 F.3d at 799 (internal

quotation marks omitted).

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

construing all inferences in the Plaintiff’s favor, the Plaintiff has plausibly

alleged that Defendants Adcock, Cathey, Dennis, Martin, and Rogers are

liable under a theory of supervisory liability. However, the Plaintiff has failed

to state a supervisory claim against Defendant Rucker, a correctional officer,

who does not appear to occupy a supervisory role at UCJ. Therefore, the

claim against Defendant Rucker will be dismissed without prejudice.

O. Supplemental Jurisdiction

Liberally construing the Amended Complaint, the Plaintiff appears to

assert claims under North Carolina law for assault and battery and

negligence.

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 Battery19

The Plaintiff appears to assert assault and battery claims against

Defendants Eubanks, Kiker, Martin with regard to the July 6 incidents [Doc.

14 at 2, 11]; and Defendants Grooms, Hamilton, Knox, and McSheehan with

regard to the July 28 incident [Doc. 14-1 at 15, 30, 40].

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). The Plaintiff’s claims of excessive force have passed initial

review against Defendants Eubanks, Grooms, Hamilton, Kiker, Knox, Martin,

and McSheehan. The Court therefore will exercise supplemental jurisdiction

19 The Plaintiff only refers to assault, but the allegations will be liberally construed as

claims of assault and battery, as the Plaintiff alleges that physical contact occurred.

over the North Carolina assault and battery claims against those Defendants

at this time.

2. Negligence

The Plaintiff appears to assert negligence claims against Defendants

Burns, Eubanks, Knotts, Martin, Philemon, and Purser regarding the

confiscation of his diabetic socks [Doc. 14 at 18]; Defendants Martin, Dennis,

and Rogers for failing to conduct a PREA investigation into his July 28 sexual

assault allegation against Defendant Hamilton [Doc. 14-1 at 15]; and

Defendants Keziah and Dorlando for failing to provide medical care or

conduct a PREA investigation, and taking him to lockup regarding his July

12 sexual assault allegation [Doc. 14-1 at 16].20

To the extent that the Plaintiff’s related § 1983 claims for deliberate

indifference to a serious medical need have passed initial review, the Court

will exercise supplemental jurisdiction over the Plaintiff’s negligence claims

against Defendants Burns, Dorlando, Eubanks, Keziah, Knotts, Martin,

Philemon, and Purser Rogers at this time. Because the Defendants had no

20 The Plaintiff also asserts that he has suffered “mental and physical neglect and

deprivation by corrupt Jail Staff…” [Doc. 14-1 at 15]; “cruel and unusual punishment a

Eighth Amendment violation prohibiting the use of pain and agony by staff done through

neglect spiral acting with a corlapal [sic] state of mind intentionally…” [Doc. 14-1 at 16];

and “mental stress loss of privileges neglect cruel and unusual punishment…” [Doc. 14-

1 at 36]. These allegations are too vague and conclusory to proceed and therefore will

be dismissed.

duty to conduct a PREA investigation, the Plaintiff’s negligence claims based

on the Defendants’ failure to conduct such an investigation are dismissed.

IV. CONCLUSION

In sum, Plaintiff has stated plausible claims of: excessive force against

Defendants Eubanks, Grooms, Hamilton, Kiker, Knox, and McSheehan;

failure to intervene against Defendant Martin; failure to protect against

Defendants Dennis, and Rogers; deliberate indifference to a serious medical

need against Defendants Burns, Dorlando, Eubanks, Keziah, Knotts, Martin,

Philemon, and Purser; due process violations against Defendants Burns,

Dorlando, Keziah, Kimball, Martin, Strickland, and Younts; retaliation against

Defendants Burns, Eubanks, Kiker, Kimball, Knotts, Martin, Purser, Younts;

interference with the mail against Defendants Kimball, Martin, and Younts;

conspiracy against Defendants Adcock, Panek; equal protection violations

against Defendants Dennis, Dorlando, Keziah, Martin, Philemon, and

Purser; and supervisory liability against Defendants Adcock, Cathey, Dennis,

Martin, and Rogers have passed initial review. The Court will exercise

supplemental jurisdiction over the Plaintiff’s North Carolina assault and

battery claims against Defendants Eubanks, Grooms, Hamilton, Kiker, Knox,

Martin, and McSheehan; and negligence claims arising out of the alleged

failure to provide medical care by Defendants Burns, Dorlando, Eubanks,

Keziah, Knotts, Martin, Philemon, and Purser. The remaining claims are

dismissed without prejudice.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The Amended Complaint [Doc. 14] has passed initial review:

against Defendants Eubanks, Grooms, Hamilton, Kiker, Knox, and

McSheehan for the use of excessive force; against Defendant

Martin for failure to intervene; against Defendants Dennis, and

Rogers for failure to protect; against Defendants Burns, Dorlando,

Eubanks, Keziah, Knotts, Martin, Philemon, and Purser for

deliberate indifference to a serious medical need; against

Defendants Burns, Dorlando, Keziah, Kimball, Martin, Strickland,

and Younts for due process violations; against Defendants Burns,

Eubanks, Kiker, Kimball, Knotts, Martin, Purser, and Younts for

retaliation; against Defendants Kimball, Martin, and Younts for

interference with the mail; against Defendants Adcock and Panek

for conspiracy; against Defendants Dennis, Dorlando, Keziah,

Martin, Philemon, and Purser for equal protection violations; and

against Defendants Adcock, Cathey, Dennis, Martin, and Rogers for

supervisory liability.

2. The Court will exercise supplemental jurisdiction over the Plaintiff’s

North Carolina assault and battery claims against Defendants

Eubanks, Grooms, Hamilton, Kiker, Knox, Martin, and McSheehan;

and his negligence claims arising out of the alleged failure to provide

medical care by Defendants Burns, Dorlando, Eubanks, Keziah,

Knotts, Martin, Philemon, and Purser.

3. The remaining claims are DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the Clerk is directed to mail twenty-

one (21) blank summons forms to the Plaintiff for the Plaintiff to fill out and

return for service of process on Defendants. The Plaintiff is required to

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

on the Defendants. Once the Court receives the summons forms, the Clerk

shall then direct the U.S. Marshal to effectuate service on the

Defendants. The Clerk is respectfully instructed to note on the docket when

the forms have been mailed to the Plaintiff.

The Clerk of Court is further instructed to mail 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 20, 2022

5 a at

Reidinger ey

Chief United States District Judge AES

33