Moore v. Church

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:21-cv-00109-MR

WILLIAM BRADLEY MOORE, )

)

Plaintiff, )

)

vs. )

)

FNU CHURCH, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

Amended Complaint.1 [Doc. 5]. The Plaintiff is proceeding in forma

pauperis. [Doc. 8].

I. BACKGROUND

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

addressing incidents that allegedly occurred at the Alexander Correctional

Institution, where he is still incarcerated. The Plaintiff names as Defendants

the following Alexander CI employees in their individual and official

capacities: FNU Church, a correctional sergeant; and FNU Velasco and FNU

1 The Plaintiff filed the Amended Complaint before the original Complaint [Doc. 1] had

been reviewed for frivolity.

Baker, correctional officers. [Doc. 5 at 1-3]. The Amended Complaint

alleges an Eighth Amendment claim for the use of excessive force and failure

to intervene2 for incidents that allegedly occurred on January 16, 2021. [Id.

at 3-4]. The Plaintiff alleges that he sustained injuries in the incident that

required a trip to the hospital for staples in his head, and stitches under his

right eye. [Id. at 5]. The Plaintiff seeks compensatory and punitive damages.

[Id. at 5].

II. STANDARD OF REVIEW

Because the 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.

2 While the Plaintiff phrases this claim as “failure to protect from assault,” it is liberally

construed as a claim for failure to intervene. See Erickson v. Pardus, 551 U.S. 89, 94

(2007) (instructing courts to construe pro se documents liberally); Haines v. Kerner, 404

U.S. 519 (1972) (a pro se complaint, however inartfully pled, must be held to less stringent

standards than formal pleadings drafted by lawyers).

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 § 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).

The Plaintiff purports to sue the Defendants, who are all state officials,

in their individual and official capacities. [Doc. 5 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 claims against the Defendants in their official

capacities do not survive initial review and will be dismissed with prejudice.

With respect to his claims against the Defendants in their individual

capacities, the Plaintiff alleges that Officer Velasco pepper sprayed him and

tackled him to the ground [Doc. 5 at 4]; that Defendant Church stood by while

Defendants Velasco and Baker slammed him to the ground, and kicked and

punched him while he was restrained [id. at 5]; and that Defendant Church

“dry tased” him at some point while he was restrained [id. at 6].

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, an inmate must

satisfy both an objective component, namely, that the harm inflicted was

sufficiently serious, and a subjective component, namely, that the prison

official acted with a sufficiently culpable state of mind. Williams v. Benjamin,

77 F.3d 756, 761 (4th Cir. 1996).

This subjective standard requires proof of malicious or sadistic action

by a prison official in order to make out an excessive force claim. This is

because prison “[o]fficials are entitled to use appropriate force to quell prison

disturbances.” Williams, 77 F.3d at 761. “Because officials must act ‘in

haste, under pressure, and frequently without the luxury of a second chance,’

deliberate indifference is not a sufficiently rigorous standard.” Id. (citing

Whitley, 475 U.S. at 320). “Rather, in these circumstances, in order to make

out an Eighth Amendment claim, a prisoner must demonstrate that officials

applied force maliciously and sadistically for the very purpose of causing

harm.” Id. (internal quotations and citation omitted).

The Fourth Circuit addresses a failure to intervene claim as a theory of

“bystander liability” wherein there is “an omission to act...coupled with a duty

to act.” Randall v. Prince George’s Cnty., 302 F.3d 188, 202 (4th Cir. 2002).

A “bystander officer” could 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.” Id. at 204. However, if no excessive force is applied by the fellow

officer, the officer witnessing the conduct “cannot be held liable under

bystander liability for a failure to intervene.” Howie v. Prince George’s Cnty.,

No. 2006-3465, 2009 WL 2426018 at *6 (D. Md. Aug. 5, 2009); see also

Jarvis v. Securitas Sec. Servs. USA, No. 11-cv-654, 2012 WL 527597 (D.

Md. Feb. 16, 2012).

Taking as true the facts as alleged for the purposes of initial review,

and construing all inferences in the Plaintiff's favor, the Court concludes that

the Plaintiff has stated an Eighth Amendment claim against Defendants

Church, Velasco, and Baker. These claims have passed initial review.

IV. CONCLUSION

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

Eighth Amendment claims against Defendants Church, Velasco, and Baker

survive initial review. The Court will dismiss the claims against the

Defendants in their official capacities with prejudice.

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 Church, Velasco, and Baker, who are alleged to be

current or former employees of NCDPS.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The Complaint has passed initial review against Defendants

Church, Velasco, and Baker for violating the Plaintiff's Eighth

Amendment rights.

2. The claims against the Defendants in their official capacities are

DISMISSED WITH PREJUDICE.

3. The Clerk of Court shall commence the procedure for waiver of

service as set forth in Local Civil Rule 4.3 for Defendants Church,

Velasco, and Baker, who are alleged to be current or former

employees of NCDPS.

The Clerk of Court is respectfully instructed to mail the Plaintiff 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 26, 2022

Ct ey

Chief United States District Judge AS