Torres v. Dye

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:20-cv-00164-MR

JONATHAN ANTHONY LEE TORRES, )

)

Plaintiff, )

)

vs. )

)

ERIC DYE, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

Complaint [Doc. 17]. The Plaintiff is proceeding in forma pauperis. [Doc.

9].

I. BACKGROUND

The pro se incarcerated Plaintiff filed this civil rights action pursuant to

42 U.S.C. § 1983 for incidents that allegedly occurred at the Alexander

Correctional Institution. On July 28, 2021, the Court conducted an initial

review of the Complaint. [Doc. 12]. Specifically, the Court allowed the

Plaintiff to proceed with First Amendment retaliation claims against

Defendants Biecker, Brown, Carroll, Chester, Clawson, Delozier, Dye,

Franks, Morrison,1 Moss, Poteat, Powell, and Turner, and a due process

claim against Defendant Moss. [Id. at 28-29]. The Court dismissed without

prejudice the Plaintiff’s other claims that the Defendants violated due

process; violated prison policy; denied him access to the courts; violated

equal protection; exposed him to cruel and unusual conditions of

confinement; and conspired to violate his civil rights. [Id.]. The Plaintiff was

given the opportunity to amend his Complaint in order to address the

deficiencies identified in the Court’s Order. [Id.].

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

[Doc. 17]. The Plaintiff continues to assert claims of retaliation, due process

violations, conspiracy, and an equal protection violation. The Plaintiff seeks

to assert new claims under North Carolina law of negligence and violations

of the North Carolina Constitution. [Id. at 3]. He seeks a declaratory

judgment; injunctive relief; nominal, compensatory, and punitive damages;

reasonable costs and attorney’s fees;2 and other relief the court may deem

just and proper. [Id. at 5].

1 Also spelled “Morrsion” in the Amended Complaint. [Doc. 17 at 15].

2 The Plaintiff is not represented by counsel at this time.

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 “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 Amended

Complaint raises an indisputably meritless legal theory or is founded upon

clearly baseless factual contentions, such as fantastic or delusional

scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore,

a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S.

519, 520 (1972). However, the liberal construction requirement will not

permit a district court to ignore a clear failure to allege facts in his Complaint

which set forth a claim that is cognizable under federal law. Weller v. Dep’t

of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

III. DISCUSSION

To state a claim under § 1983, a plaintiff must allege that he was

“deprived of a right secured by the Constitution or laws of the United States,

and that the alleged deprivation was committed under color of state law.”

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

A. Disciplinary Proceedings

Construing the Amended Complaint liberally, the Plaintiff appears to

reiterate his claim that Defendant Moss violated due process with regards to

a disciplinary video, and he further claims that Defendant Blackburn violated

due process by finding him guilty of a disciplinary infraction. [Doc. 17 at 5,

20]. The claim against Defendant Moss will again be permitted to proceed,

and the claim against Defendant Blackburn will be dismissed, for the same

reasons previously stated. [Doc. 12 at 8-9].

B. Retaliation

The Plaintiff appears to assert a similar retaliation claim to the one that

previously passed initial review. [Doc. 17 at 17-18]. For the reasons stated

in its prior Order, the Court concludes that the Plaintiff has again stated

retaliation claims against Defendants Biecker, Brown, Carroll, Chester,

Clawson, Delozier, Dye, Franks, Morrison, Moss, Poteat, Powell, and

Turner. [Doc. 12 at 18-20].

C. Conspiracy

The Plaintiff claims that Defendant Blackburn and the other

Defendants conspired to retaliate against him, and to destroy and tamper

with evidence in retaliation for the Plaintiff’s filing grievances and reports

complaining about staff. [Doc. 17 at 20]. He claims that “every Defendant

listed played a piece of the puzzle.” [Id.]. The Plaintiff’s conclusory

allegations of conspiracy fail to demonstrate any meeting of the minds

among the Defendants. [See Doc. 12 at 26]. Accordingly, this claim is

dismissed.

D. Classification and Housing

The Plaintiff again complains that he was placed in RDU without due

process. [Id. at 21-23]. For the reasons previously stated, the Plaintiff fails

to state a clam for a procedural due process violation. [Doc. 12 at 8, 16]. To

the extent that the Plaintiff now attempts to state a substantive due process

claim, it is duplicative of his challenge to the conditions of his confinement in

the RDU program at Marion CI that is presently pending in another § 1983

lawsuit before this Court, Case No. 1:21-cv-00068-MR. This claim fails with

regard to Alexander CI employees for the same reasons it fails at Marion.

See also Williams v. Benjamin, 77 F.3d 756, 768 (4th Cir. 1996) (“it is now

well established that the Eighth Amendment ‘serves as the primary source

of substantive protection to convicted prisoners,’ and the Due Process

Clause affords a prisoner no greater substantive protection ‘than does the

Cruel and Unusual Punishments Clause.’”) (quoting Whitley v. Albers, 475

U.S. 312, 327 (1986)). The allegations also fail to state a claim for the

reasons previously stated. [See Doc. 12 at 8, 16]. Accordingly, the Plaintiff’s

procedural and substantive due process challenges to his RDU placement

are dismissed.

E. Equal Protection

The Plaintiff claims that he is being treated differently in RDU than

other inmates who are classified as “general population” who are not in the

RDU. [Doc. 17 at 23-24]. This claim is duplicative of the Plaintiff’s

unsuccessful equal protection claim against Marion CI employees in Case

No. 1:21-cv-0068-MR. This claim also fails to state a claim, and cannot

proceed against the Defendants in the instant case, who are all employed at

the Alexander CI rather than Marion CI. Accordingly, this claim is dismissed.

F. Supplemental Jurisdiction

The Plaintiff asserts “state claims of negligence, N.C. State

Constitution Article I, Section 1, 19.” [Doc. 17 at 3].

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).

“Claims brought under the North Carolina Constitution may be

asserted only against state officials acting in their official capacities.” Love-

Lane v. Martin, 355 F.3d 766, 789 (4th Cir. 2004); see Corum v. Univ. of N.C.,

330 N.C. 761, 413 S.E.2d 276, 289, 293 (1992) (“in the absence of an

adequate state remedy, one whose state constitutional rights have been

abridged has a direct claim against the State under our Constitution.”). A

plaintiff whose rights under the North Carolina Constitution have been

violated may pursue an action directly under the state constitution only if

there is no other remedy under state law to redress the violation. Corum,

413 S.E.2d at 289.

Article I, Section 19 addresses due process. This right under the North

Carolina Constitution is synonymous with federal due process rights. See

Frye v. Brunswick Cty. Bd. of Educ., 612 F. Supp. 2d 694, 705 (E.D.N.C.

2009). The Plaintiff’s federal due process claim against Defendant Moss has

passed initial review. Therefore, the Court will exercise supplemental

jurisdiction over the § 19 claim against Defendant Moss at this time.

Article I, Section 1 states in pertinent part that “all persons are ...

endowed by their Creator with certain inalienable rights,” including “the

enjoyment of the fruits of their own labor.” N.C. Const. Art. I, § 1. The Plaintiff

fails to set forth any factual allegations in support of a Section 1 claim, and

no similar federal claim has passed initial review. Accordingly, the Court

declines to exercise supplemental jurisdiction over the Plaintiff’s Section 1

claim at this time.

In support of his negligence claim, the Plaintiff states that: “[a]ll conduct

by all listed Defendants, as listed and backed by evidence is negligence by

staff which resulted in all listed claims, conduct from staff resulted

negligence.” [Id. at 24]. North Carolina law requires that, “in order to prevail

in a negligence action, [a plaintiff] must offer evidence of the essential

elements of negligence: duty, breach of duty, proximate cause, and

damages.” Blackwell v. Hatley, 202 N.C.App. 208, 212, 688 S.E.2d 742, 746

(2010); Camalier v. Jeffries, 340 N.C. 699, 460 S.E.2d 133, 136 (1995). The

Plaintiff’s allegations are too vague and conclusory to state a negligence

claim against any Defendant, and no related federal claim has passed initial

review. Thus, the Court declines to exercise supplemental jurisdiction over

such claim at this time.

IV. CONCLUSION

In sum, the Complaint has passed initial review against Defendants

Biecker, Brown, Carroll, Chester, Clawson, Delozier, Dye, Franks, Morrison,

Moss, Poteat, Powell, and Turner for retaliation, and against Defendant

Moss for violating due process with regards to the disciplinary video. The

Court will exercise supplemental jurisdiction over the Article I, Section 19

claim against Defendant Moss at this time. The remaining claims are

dismissed without 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 Biecker, Brown, Carroll, Chester, Clawson, Delozier, Dye,

Franks, Morrison, Moss, Poteat, Powell, and Turner, who are alleged to be

current or former employees of NCDPS.

IT IS, THEREFORE, ORDERED that:

1. The Amended Complaint [Doc. 17] has passed initial review against

Defendants Biecker, Brown, Carroll, Chester, Clawson, Delozier,

Dye, Franks, Morrison, Moss, Poteat, Powell, and Turner for

retaliation, and against Defendant Moss for violating due process.

The Court will exercise supplemental jurisdiction over the Plaintiff's

Article |, Section 19 claim against Defendant Moss.

2. The remaining claims are DISMISSED WITHOUT 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 Biecker,

Brown, Carroll, Chester, Clawson, Delozier, Dye, Franks, Morrison,

Moss, Poteat, Powell, and Turner, who are alleged to be current or

former employees of NCDPS.

IT IS SO ORDERED.

Signed: March 2, 2022

Ct ey

Chief United States District Judge AS

10