Anderson v. Dye

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:21-cv-00168-MR

ALBERT MARQUAVIOUS LAMAR, )

ANDERSON, )

)

Plaintiff, )

)

vs. )

)

ERIC DYE, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

Complaint. [Doc. 1]. Also pending are the Plaintiff’s pro se “Motion to

Purpose Exhibits” [Doc. 12], “Motion for Forensic’s [sic] File Examination

Order” [Doc. 13], and “Motion for Intimidation from the Defendants Resulting

in Involuntary Actions” [Doc. 14]. 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.1 [Doc. 1].

1 The Plaintiff has now been released from custody.

The Plaintiff names as Defendants the Alexander CI, Alexander CI’s

“Medical Provider” which he believes to be Southern Health Partners, and

the following Alexander CI employees: Eric Dye, the superintendent; Jeffrey

Duncan, the assistant warden; John Doe Physical Therapy Nurse (PTN);

April Parker, a unit manager; FNU Wilkinson, FNU Dullah, FNU Cook, and

John Does 1, 12, 13, and 14, correctional officers; FNU Byrd and John Does

2 and 3, sergeants; FNU Jonathan and John Doe 4, lieutenants; John Does

5 through 11, armored correctional officers; and FNU Cox, A. Rein, FNU

Gonzalez, FNU Shoemaker, and John Does 15 and 16, nurses. [Doc. 1]. In

the Complaint, the Plaintiff alleges that he was sexually abused, harassed,

and attacked by other inmates at his prior institution, Maury CI. He alleges

that his nose was broken in the attack and that he received surgery at an

outside hospital on October 26, 2021. After a brief visit to Central Prison, was

transferred to Alexander CI to recover on October 27, 2021.2 He asserts

Eighth Amendment claims for the treatment he has received at Alexander

CI, including sexual abuse, deliberate indifference to his serious medical

needs, the use of threatening and insulting language, the use of excessive

force, and inhumane housing conditions. [Doc. 1 at 18-30]. He claims that

2 The Plaintiff has a lawsuit pending in the Eastern District of North Carolina addressing

incidents that allegedly occurred before his arrival at Alexander CI, Case No. 5:21-ct-

3289-FL.

he is in imminent danger from prison employees, and is “afraid for [his] life

[because he] ate a tray[,] went to sleep and when [he] woke up [he] couldn’t

see nothing but worms….” [Id. at 8]. He seeks immediate release,3 $3.2

million in compensatory damages, and $3.6 million in punitive damages. [Id.

at 15].

After filing the Complaint, the Plaintiff filed several Motions in which it

appeared that he was attempting to amend the Complaint. In an Order

issued on January 5, 2022, the Court denied the Motions, informed the

Plaintiff that piecemeal amendment would not be permitted, and gave the

Plaintiff until February 4, 2022 to file a superseding Amended Complaint.

[Doc. 11]. The Court cautioned the Plaintiff that, if he failed to comply with

the Order, it would proceed on the Complaint as originally filed. [Id.]. The

time to amend has expired and no Amended Complaint has been filed. The

Court will accordingly review the Complaint for frivolity.

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

3 This relief is beyond the purview of a § 1983 action. See Preiser v. Rodriguez, 411 U.S.

475, 500 (1973) (when a state prisoner seeks immediate release or a speedier release

from imprisonment, his sole federal remedy is a writ of habeas corpus). Moreover, this

claim is moot because the Plaintiff is no longer incarcerated. See generally Incumaa v.

Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007) (prisoner’s release from the maximum

security unit mooted his challenge to that unit’s policy).

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 § 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). 4

A. Venue

The Complaint addresses incidents that were alleged to have occurred

at Maury CI and Central Prison, both of which are located in the Eastern

District of North Carolina. See 28 U.S.C. § 1391(b). Further, the allegations

in the Complaint regarding these institutions appear to be at least partially

duplicative of a case that is pending in the Eastern District, Case No. 5:21-

ct-3289-FL. Accordingly, these claims are dismissed without prejudice, and

the Court will only review the incidents that were alleged to have occurred

after the Plaintiff arrived at Alexander CI.

B. Parties

The Plaintiff names as a Defendant the Alexander CI. However,

“neither a state nor its officials acting in their official capacities are ‘persons’

under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).

Thus, NCDPS facilities are not “persons” under § 1983. See Fox v.

Harwood, No. 1:09-cv-160-MU-02, 2009 WL 1117890 at *1 (W.D.N.C. Apr.

4The Plaintiff’s claims have been liberally construed and restated. Many of the allegations

are not attributed to a specific Defendant or Defendants, or are so trivial, nonsensical, or

outlandish that they do not warrant separate discussion. Any claim or argument not

specifically addressed in this discussion has been considered and rejected.

24, 2009). Accordingly, the Plaintiff’s claims against Alexander CI are

dismissed with prejudice.

The Plaintiff also purports to sue Defendants, who are state officials,

in their individual and 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, 491 U.S. at 71. 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.

The Plaintiff names as a Defendant the “medical provider” for

Alexander CI, which he believes to be Southern Health Partners. [Doc. 1 at

29-30]. A private company that provides medical services to a publicly-run

prison or jail is usually considered to be a state actor that is amenable to suit

under § 1983. See West v. Atkins, 487 U.S. 42 (1988); Conner v. Donnely,

42 F.3d 220, 224 (4th Cir. 1994). However, such a private company is liable

under § 1983 only when “an official policy or custom of the corporation

caused the alleged deprivation of federal rights.” Austin v. Paramount Parks,

Inc., 195 F.3d 715, 728 (4th Cir. 1999) (citations omitted); Monell v. Dep’t of

Soc. Servs., 436 U.S. 658 (1978). Liability cannot be based on respondeat

superior alone. Monell, 436 U.S. at 691; Powell v. Shopco Laurel Co., 678

F.2d 504, 506 (4th Cir. 1982). The Plaintiff complains that he received

inadequate medical care at Alexander CI, and that this was due to the

“inhumane practices of … Southern Health Partners.” [Doc. 1 at 30]. He

explains that “[t]hese policies are perhaps the most cost effective method of

providing the bare minimum of medical care to the despicable depraved

degenerates but it often prolongs suffering.” [Id. at 29-30]. The Plaintiff’s

vague allegations fail to identify a policy or custom of Southern Health

Partners upon which a Monell claim could rest, and he appears to rely on

respondeat superior. Accordingly, he has failed to state a claim against

Southern Health Partners and it will be dismissed as a Defendant.

C. Eighth Amendment Violations

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 – 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).

First, the Plaintiff alleges that several Defendants pressured him to

undergo a state-mandated tuberculosis (TB) test on November 2 and 6, to

which he finally submitted on November 18 after John Doe Nurses 15 and

16, and unit manager April Parker threatened to have him held down if he

would not comply. [Doc. 1 at 26, 28]. The Plaintiff has failed to explain how

a TB test was sufficiently serious to satisfy the Eighth Amendment’s objective

component. Nor does he allege any facts that would suggest that

Defendants’ actions resulted from a sufficiently culpable state of mind, rather

than to further a legitimate penological interest. See generally King v.

Rubenstein, 825 F.3d 206, 222 (4th Cir. 2016). This claim is dismissed.

Second, the Plaintiff appears to allege that the TB test amounted to

sexual abuse:

I have now become a victim of sexually abuse by

Alexander employees… I have been entered with specimens

that were rooted in my food and feel as thow I’ve been rape by a

group of men that are suppose to protect me. This is a very hard

impact on my life. Officer Cook didn’t only endanger me when

he said that TB test gave me Aids he endangered the life and

jobs of everyone that attended that setting on Nov. 8th 2021. I

feel lost I am suffering stomachaches, headaches, and changes

in sleep patterns. I am so embarrassed by threats from officer’s

to engage in the activities described in my rejected grievance, I

told them ‘no’ I said stop it now but they kept going (tear’s).

[Doc. 1 at 6 (grammatical errors and misspellings in original]. This

nonsensical and outlandish claim is dismissed.

Third, the Plaintiff alleges that various Defendants threatened him,

taunted him, and used insulting language. [Doc. 1 at 19-20, 23-24, 29].

However, “[m]ere threats or verbal abuse by prison officials, without more,

do not state a cognizable claim under § 1983.” Henslee v. Lewis, 153 F.

App’x 178, 180 (4th Cir. 2005). These claims are therefore dismissed.

Fourth, the Plaintiff alleges that John Doe 5 sprayed him with a

gratuitous amount of pepper spray after the Plaintiff refused to cooperate

with a cell transfer. [Doc. 1 at 24-25]. The subjective standard for an

excessive force claim requires proof of malicious or sadistic action by a

prison official. 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). This claim is self-defeating because the Plaintiff admits that he

refused to comply with a direct order, and was pepper sprayed as a result of

his refusal. The Plaintiff does not allege any facts that would suggest that

Defendant John Doe 5’s actions resulted from a sufficiently culpable state of

mind, rather than to quell the Plaintiff’s admitted disobedience. He has failed

to state an excessive force claim under these circumstances, and this claim

is dismissed without prejudice.

Fifth, the Plaintiff alleges that various Defendants exposed him to

inhumane conditions of confinement. [Doc. 1 at 19-26, 29]. “The

Constitution does not mandate comfortable prisons;” however, “the

treatment a prisoner receives in prison and the conditions under which he is

confined are subject to scrutiny under the Eighth Amendment.” Farmer v.

Brennan, 511 U.S. 825, 832 (1994) (internal quotations and citations

omitted). To state a claim that conditions of confinement violate

constitutional requirements, an inmate must allege (1) a “sufficiently serious”

deprivation under an objective standard and (2) that prison officials acted

with “deliberate indifference” to the inmate’s health and safety under a

subjective standard. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991). A

sufficiently serious deprivation occurs when “a prison official’s act or

omission ... result[s] in the denial of the minimal civilized measure of life’s

necessities.’” Id. at 298 (citing Rhodes v. Chapman, 452 U.S. 337, 347

(1981)). A prison official is deliberately indifferent if he has actual knowledge

of, and disregards, a substantial risk of harm to a prisoner. Farmer, 511 U.S.

at 832. The Plaintiff’s allegations that the Defendants exposed him to

inhumane conditions are insufficiently serious, outlandish, and too vague

and conclusory to state a claim against any Defendant. This claim is

dismissed without prejudice.

Sixth, the Plaintiff alleges that various Defendants were deliberately

indifferent to his serious medical needs. [See Doc. 1 at 18-30]. 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 establish that a health care provider’s actions constitute

deliberate indifference to a serious medical need, the treatment must be so

grossly incompetent, inadequate, or excessive as to shock the conscience

or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848,

851 (4th Cir. 1990). The Plaintiff’s allegations that the Defendants were

deliberately indifferent to his serious medical needs are insufficient to

present a claim that any Defendant knew of, and deliberately ignored, any

serious medical need with which the Plaintiff was suffering at that time. See,

e.g., Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (a disagreement

between an inmate and a physician over the inmate’s proper medical care

falls short of showing deliberate indifference). Accordingly, the Plaintiff’s

claims for deliberate indifference to a serious medical need are dismissed

without prejudice.

D. Supervisory Defendants

Finally, the Plaintiff claims that, “[u]pon information and belief, Warden

Herring, Warden Fleming, Warden Dye, Warden Duncan, the administrative

officials in charge of staffing, hiring, institutional policy settings, and

overseeing day to day operations, have consulted and put ‘a number on

[Plaintiff’s] head’ which involved Erik Hooks or his replacement’s stamp of

approval to violate[ ] [Plaintiff’s] rights and take [him] down by any means.”

[Doc. 1 at 17]. This claim will be liberally construed as asserting civil

conspiracy and supervisory liability.

As a preliminary matter, this claim cannot proceed against Warden

Herring, Warden Flemming, Erik Hooks, or other “administrative officials”

because they have not been named as Defendants in this action. See

generally Fed. R. Civ. P. 10(a) (requiring the title of the complaint to name

all parties); see, e.g., Shine v. Charlotte Mecklenburg Police Dep’t, No. 3:17-

cv-306-FDW, 2018 WL 2943456 (W.D.N.C. June 12, 2018) (dismissing as

nullities the allegations against individuals not named as defendants in the

caption as required by Rule 10(a)).

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) (Section 1985 case). 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). Here, the Plaintiff’s

allegations against Defendants Dye and Duncan are so vague and

conclusory that the Court cannot infer that an agreement or meeting of the

minds existed that resulted in the deprivation of a constitutional right.

Accordingly, to the extent that the Plaintiff is attempting to state a claim for

civil conspiracy under § 1983, it is dismissed.

To the extent that the Plaintiff seeks to assert claims against

Defendants Dye and Duncan, such claims appear to rest on a theory of

respondeat superior, which is not cognizable under § 1983. Monell, 436 U.S.

at 694. Further, the Plaintiff has failed to state a claim against any individual

Defendant, so his supervisory claims against Defendants Dye and Duncan

based on those violations necessarily fail. See Waybright v. Frederick Cnty.,

Md., 528 F.3d 199, 203 (4th Cir. 2008) (“supervisors and municipalities

cannot be liable under § 1983 without some predicate ‘constitutional injury

at the hands of the individual [state] officer,’ at least in suits for damages.”)

(quoting City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).

Accordingly, the Plaintiff’s claims against Defendants Dye and Duncan are

dismissed.

E. Pending Motions

The Plaintiff has filed several pro se motions that will be discussed in

turn. In the “Motion to Purpose Exhibits,” the Plaintiff cites Rules 16, 26, and

37 of the Federal Rules of Civil Procedure. He fails to explain why these

Rules apply to his case at this early juncture, or describe the relief he is

seeking. Accordingly, the Motion is denied.

In the “Motion for Forensic’s [sic] File Examination Order,” the Plaintiff

purports to have enclosed exhibits for DNA testing, none of which were

received by the Court; he alleges that he continues to be in imminent danger

of irreparable harm; and he asks the Court to “carry Alexander Correctional

Institution into bankruptcy relief immediately for conducting an illegal sex ring

slavory [sic] act, to abolish[ ] this type of behavior…” [Doc. 13 at 4]. This

Motion is nonsensical and is denied.

In his “Motion for Intimidation from the Defendants Resulting in

Involuntary Actions,” the Plaintiff claims that he is being brainwashed and

mistreated by the Defendants; that he is in imminent danger; and he appears

to assert that he submitted an Amended Complaint which was altered before

it reached the Clerk of Court. This Motion is moot because the Plaintiff is no

longer in custody, and he will have the opportunity to file a superseding

Amended Complaint.

IV. CONCLUSION

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

claims against the Alexander CI are dismissed with prejudice, and the

remaining claims are dismissed without prejudice. The Court will allow

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.5 Any Amended Complaint will be subject

to all timeliness and procedural requirements and will supersede the

Complaint. Piecemeal amendment will not be allowed. Should the Plaintiff

fail to timely amend his Complaint in accordance with this Order, this action

will be dismissed without prejudice and without further notice to the Plaintiff.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The claims against Alexander CI are DISMISSED WITH

PREJUDICE.

2. The remaining claims are DISMISSED WITHOUT PREJUDICE.

5 Blank complaint forms are available on the Court’s website,

https://www.ncwd.uscourts.gov/local-forms/prose-forms.

3. The Plaintiff shall have thirty (30) days in which to amend his

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

fails to amend the Complaint in accordance with this Order and

within the time limit set by the Court, this action will be dismissed

without prejudice and without further notice to the Plaintiff.

IT IS SO ORDERED.

Signed: March 2, 2022

Martifi Reidinger ee

Chief United States District Judge “AES

17