Anderson v. Vickery

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:22-cv-00018-MR

TONY LEE ANDERSON, )

)

Plaintiff, )

)

vs. ) ORDER

)

FNU VICKERY, et al., )

)

Defendants. )

________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s

Complaint [Doc. 1] filed under 42 U.S.C. § 1983. See 28 U.S.C. §§ 1915(e)

and 1915A. Plaintiff is proceeding in forma pauperis. [Docs. 2, 7].

I. BACKGROUND

Pro se Plaintiff Tony Lee Anderson (“Plaintiff”) filed this action on

January 28, 2022 pursuant to 42 U.S.C. § 1983, against Defendants FNU

Vickery and FNU Smith, identified as Buncombe County Sheriff’s Deputies;

“Medical Staff” at the Buncombe County Detention Facility (the “Jail”); and

Quinton Miller, Buncombe County Sheriff, all in their individual and official

capacities.1 [Doc. 1]. Plaintiff does not assert which constitutional rights he

1 Plaintiff alleges that he is an “inmate” “waiting to go to court,” but does not identify himself

as a pretrial detainee. [Doc. 1 at 4]. For the sake of initial review, the Court will,

nonetheless, assume that Plaintiff is a pretrial detainee.

contends were violated, but his allegations implicate the Fourteenth

Amendment. Although Plaintiff’s allegations are somewhat unclear and

disjointed, the Court infers that Plaintiff alleges the following.

On January 8, 2022 at approximately 9:15 a.m., a nurse at the Jail

gave Plaintiff his medication at his cell with his cell door open. Plaintiff

wanted the nurse to see him take his medication properly, but Defendant

Vickery went to shut Plaintiff’s cell door and Plaintiff stopped him. Defendant

Vickery “got an attitude” and “slammed [Plaintiff’s] door without any care or

attention or desire to see [Plaintiff] take [his] meds the right way.” [Id. at 5].

Defendant Vickery did this “intentually [sic] without paying attention” and

“joked about it afterwards.” [Id.]. Plaintiff was denied medical care following

the incident and was told such care was “not justifiedable [sic].” [Id.].

The next day Plaintiff submitted a grievance regarding the incident to

Defendant Smith. Plaintiff did not receive a response to his grievance and,

when he asked Defendant Smith about it, Smith told Plaintiff that “it wasn’t a

serious enough issue.” [Id. at 7]. Plaintiff also references a second

grievance he filed based on the denial of medical attention and Defendant

Smith’s failure to process Plaintiff’s first grievance. [Id.]. Plaintiff makes no

allegations against Defendant Miller or any particular medical care provider.

For injuries, Plaintiff alleges that his pinky and ring fingers are injured

and that he has suffered pain and loss of sleep. [Doc. 1 at 5].

For relief, Plaintiff seeks monetary damages. [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 “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.

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 42 U.S.C. § 1983, a plaintiff must allege the

violation of a right secured by the Constitution or laws of the United States

and must show that the deprivation of that right was committed by a person

acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Plaintiff here claims that Defendant Vickery carelessly shut Plaintiff’s cell

door, injuring Plaintiff’s hand; that Plaintiff was denied medical care; and that

Defendant Smith failed to process Plaintiff’s grievance.

A. Defendant Miller

Suits against sheriffs in their official capacity are in substance claims

against the office of the sheriff itself. Gannt v. Whitaker, 203 F.Supp.2d 503,

508 (M.D.N.C. Feb. 26, 2002). To succeed on such a claim, Plaintiff must

allege that a Sheriff’s Office policy or custom resulted in the violation of

federal law. See Monell v. New York City Dept. of Social Services, 436 U.S.

658, 694, 98 S.Ct. 2018, 2037-38 (1978) (holding that in an official capacity

suit, the entity’s “policy or custom” must have played a part in the violation of

federal law); Oklahoma City v. Tuttle, 471 U.S. 808, 818-20, 105 S.Ct. 2427,

2433-34 (1985) (discussing same). Plaintiff makes no such claim here. As

such, Plaintiff has failed to state a claim against Defendant Miller in his official

capacity.

Plaintiff also fails to state a claim against Defendant Miller in his

individual capacity. The doctrine of respondeat superior does not apply in

actions brought under § 1983. See Monell, 436 U.S. at 694. Rather, to

establish liability under § 1983, a plaintiff must show that the defendant

“acted personally” to cause the alleged violation. See Vinnedge v. Gibbs,

550 F.2d 926, 928 (4th Cir. 1977) (citation omitted). Here, Plaintiff has not

made any allegations against Defendant Miller, only that employees of

Defendant Miller violated Plaintiff’s rights. Thus, Plaintiff has also failed to

state a claim for relief against Defendant Miller in his individual capacity.

Defendant Miller will be dismissed as a Defendant in this matter.

B. Defendant “Medical Staff” at the Jail

Plaintiff alleges only that he was denied medical care following the

incident. He makes no allegations against individual healthcare providers

and no allegations that any prison official or employee evinced deliberate

difference to a serious medical need.2 Thus, Plaintiff has not stated a claim

2 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). Because Plaintiff was a pretrial

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); see also Martin v. Gentile, 849 F.2d

863 (4th Cir. 1988) (applying the Fourteenth Amendment to arrestee’s deliberate

indifference claims). However, the Fourth Circuit has long applied the Eighth Amendment

for relief under the Fourteenth Amendment against “Medical Staff” at the

Jail.3 See Young, 238 F.3d at 575-76.

C. Defendant Smith

Plaintiff claims only that Defendant Smith failed to process Plaintiff’s

grievance regarding the incident. “The 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). As

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

e.g., Young v. City of Mt. Rainer, 238 F.3d 567, 575 (4th Cir. 2001); Martin, 849 F.2d at

863. In Kingsley v. Hendrickson, the United States Supreme Court held that, to state an

excessive force claim, a pretrial detainee must only show that the force “purposefully and

knowingly used against him was objectively unreasonable” because, although prisoners

may not be punished cruelly or unusually, pretrial detainees may not be punished at all.

576 U.S. 389 (2015). Some circuits have held, in light of Kingsley, that an objective

reasonableness standard should apply in custodial contexts beyond excessive force. See

e.g., Hardeman v. Curran, 933 F.3d 816 (7th Cir. 2019) (extending the objective standard

to conditions of confinement cases); Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)

(same); Castro v. City of Los Angeles, 833 F.3d 1060, 1069-70 (9th Cir. 2016) (en banc)

(extending the objective reasonableness standard to failure to protect claims). The Fourth

Circuit has not yet addressed this question. See e.g. Duff v. Potter, 665 Fed. App’x 242,

244-45 (4th Cir. 2016) (applying the Kingsley standard to a detainee’s excessive force

claim but declining to disturb the district court’s ruling on plaintiff’s claim of deliberate

indifference to a serious medical need for procedural reasons). The Court will apply the

deliberate indifference standard in this case, as the relevant Fourth Circuit case law has

not been overruled and the Fourth Circuit has not expressed any intention to do so. See

e.g., Shover v. Chestnut, 798 Fed. App’x 760, 761-62 (4th Cir. 2020) (applying the

deliberate indifference standard to a pretrial detainee’s medical claim without discussing

Kingsley).

3 “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).

such, Plaintiff has also failed to state a claim for relief as to this claim and

Defendant Smith will be dismissed as a Defendant in this matter.

D. Defendant Vickery

“As a general matter, ‘[o]nly governmental conduct that shocks the

conscience is actionable as a violation of the Fourteenth Amendment.’”

Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (quoting

Young, 238 F.3d at 574 (internal quotation and citation omitted)). “The

degree of culpability on the part of a governmental actor that is sufficient to

shock the conscience will depend on the circumstances of any given case.

In cases where the government is accused … of failing to protect a detainee

from a substantial risk of physical harm, conduct that amounts to deliberate

indifference … is viewed as sufficiently shocking to the conscience that it can

support a Fourteenth Amendment claim.” Id. (international quotations and

citations omitted).

“Deliberate indifference is a very high standard – a showing of mere

negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.

1999). “An officer is deliberately indifferent to a substantial risk of harm to a

detainee when that officer ‘knows of and disregards’ the risk.” Parrish, 372

F.3d at 302 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). To be

liable under this standard, “the official must both be aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.” Farmer, 511 U.S. at 837. Thus,

deliberate indifference requires a showing that a defendant “actually knew of

and disregarded a substantial risk of serious injury to the detainee….”

Young, 238 F.3d at 575-76.

Plaintiff alleges that Defendant Vickery carelessly slammed Plaintiff’s

hand in Plaintiff’s cell door after Plaintiff prevented Vickery from closing it

when Plaintiff wanted to nurse to see him take his medication. While Plaintiff

states Vickery’s act was done “intentually,” Plaintiff also states that Vickery

slammed the door “without any care or attention” and was not “paying

attention” when he did it. [Doc. 1 at 5]. Plaintiff has failed to state a claim

for relief against Defendant Vickery under the Fourteenth Amendment.

While Defendant Vickery may have been careless when he closed the cell

door on Plaintiff’s fingers, the alleged conduct by Defendant Vickery does

not evince the subjective awareness and disregard necessary to stating a

deliberate indifference claim. The Court, therefore, concludes that Plaintiff

has failed to state a claim for relief against Defendant Vickery.

The Court, however, will allow Plaintiff to amend his Complaint to state

a claim for relief in accordance with the terms of this Order, if the facts

support such an amendment.

V. CONCLUSION

For the foregoing reasons, the Court concludes that Plaintiffs

Complaint fails initial review. The Court will allow Plaintiff thirty (30) days to

amend his Complaint, if he so chooses, to properly state a claim upon which

relief can be granted against a proper defendant. 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 Court will dismiss this action without prejudice.

ORDER

IT IS, THEREFORE, ORDERED that Plaintiff shall have thirty (30)

days in which to amend his Complaint in accordance with the terms of this

Order. If Plaintiff fails to so amend his Complaint, the matter will be

dismissed without prejudice.

IT IS FURTHER ORDERED that Defendants Miller and Smith are

DISMISSED as Defendants in this matter on initial review.

The Clerk is respectfully instructed to mail Plaintiff a blank prisoner §

1983 form. Signed: March 2, 2022

IT IS SO ORDERED.

Ste ee

Chief United States District Judge AS