Budney v. Honeycutt

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:21-cv-00062-MR

MATTHEW R. BUDNEY, )

)

Plaintiff, )

)

vs. )

)

FNU HONEYCUTT, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

Amended Complaint [Doc. 16]. The Plaintiff is proceeding in forma pauperis.

[Doc. 8].

I. BACKGROUND

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

1983 addressing incidents that allegedly occurred at the Avery-Mitchell

Correctional Institution (“Avery-Mitchell”).1 On August 3, 2021, the Court

conducted an initial review of the Complaint. [Doc. 13]. Specifically, the

Court allowed the Plaintiff proceed with retaliation claims against Defendants

Colvin and Dellinger. [Id. at 20]. The Court dismissed the claims asserted

1 Plaintiff is presently incarcerated at the Sampson Correctional Institution.

against the remaining Defendants in their individual capacities without

prejudice, and dismissed the claims against the Defendants in their official

capacities with prejudice. [Id.]. The Court noted that certain claims appeared

to be unexhausted and/or barred by Heck v. Humphrey, 512 U.S. 477 (1994).

[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 [Doc. 16] is now before the Court for initial

review. The Plaintiff again asserts claims against Defendants Honeycutt,

Watson, Colvin, Clawson, Dellinger, Stockton, and Hartzog. He adds as a

Defendant the North Carolina Department of Adult Corrections (NCDAC).

He asserts violations of the “8th, 1st, 11th,2 14th” Amendments. [Doc. 16-1

at 4-5]. Specifically, he continues to assert claims of retaliation, inhumane

conditions of confinement, deliberate indifference to a serious medical or

mental health need, and the denial of due process in relation to prison

disciplinary proceedings. He also attempts to state new claims under § 1983

for the deprivation of property without due process, the denial of access to

the courts, and the use of excessive force; and under North Carolina law for

gross negligence, the negligent and intentional infliction of emotional

2 The Eleventh Amendment, which addresses sovereign immunity, does not provide any

basis for a § 1983 claim.

distress, and assault and battery. [Doc. 16 at 2; Doc. 16-1 at 9, 21, 49, 54-

55, 67-68, 72, 74-75]. The Plaintiff asserts that he exhausted, or attempted

to exhaust, his administrative remedies as to his claims. [Doc. 16 at 8]. As

injury, the Plaintiff claims that he contracted COVID-19, “a potentially deadly

viris [sic]” which resulted in “permanent loss of taste, smell, hair.” [Doc. 16

at 6]. He further claims that his “constant fear of death from Covid-19 due to

staff’s illegal activity and fear from retaliation from both staff and inmates for

reporting illegal activity caused two panic attacks which resulted in

hospitalization….” [Doc. 16-1 at 21]. He appears to seek compensatory and

punitive damages, and injunctive relief.3 [Id. at 72-75].

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 “(i) frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks monetary relief against

3 Some of the relief that the Plaintiff seeks, including the criminal prosecution and

termination of certain NCDPS employees, 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, the claims for injunctive relief are moot insofar as the Plaintiff

no longer resides at Avery-Mitchell and the incidents of which he complains are unlikely

to recur. 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).

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 a 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 Amended Complaint comprises 100 pages of allegations and

attachments. The claims have been liberally construed, reorganized, and

restated. Vague allegations and those that the Court cannot clearly attribute

to any Defendant(s) will not be separately discussed. [See, e.g., Doc. 16 at

6 (“I was exposed to COVID-19 … due to staff’s illegal activity and fear from

retaliation from both staff and inmates….”); Doc. 16-1 at 2 (“Employees of

the DAC were furious that I reported their ‘dip’ use and retaliated by spraying

mace, chemicals and urine on their discarded ‘dip’ in an attempt to poison

inmates….”)]. Further, allegations from which the Court is unable to glean

any arguable claim such as “reckless misconduct” [Doc. 16-1 at 2, 67] and

“falsifying state documents” [id. at 72], will not be addressed separately. Any

argument or claim not specifically addressed in this Order has been

considered and rejected.

A. NCDAC

The Plaintiff purports to name as a Defendant the NCDAC. The claims

against NCDAC cannot proceed because NCDAC is not a “person” for

purposes of § 1983. See Fox v. Harwood, No. 1:09-cv-160-MU-02, 2009 WL

1117890, at *1 (W.D.N.C. April 24, 2009). Further, as previously discussed

in the Order on initial review of the Complaint, such claims are barred by

sovereign immunity. [See Doc. 13 at 6].

B. Policy Violations

The Plaintiff again complains that prison staff violated NCDPS policy

and state law by, e.g., using “dip” tobacco in the prison facility, failing to

process his grievances, and failing to follow prison disciplinary procedures.

[Doc. 16-1 at 1-2, 13-18, 20, 28]. These claims are dismissed for the reasons

stated in the Order on initial review of the Complaint. [Doc. 13 at 6-7].

C. Conditions of Confinement

The Plaintiff alleges that use of “dip” tobacco by Defendant Dellinger

and other staff in the prison exposed him to unconstitutional conditions of

confinement; that Defendants Honeycutt, Watson, Colvin, and Hartzog failed

to remedy the issue; and that the Plaintiff consequently contracted COVID-

19. [Doc. 16 at 13; Doc. 16-1 at 1, 20-21, 39-40, 49-50, 67, 69]. For the

reasons stated in the Order on initial review of the Complaint, this claim is

self-defeating and too speculative to state an Eighth Amendment violation.

[Doc. 13 at 7-10; see Doc. 16-1 at 16-17, 23, 32, 67 (referring to used dip

pouches that the Plaintiff collected as evidence of staff misconduct)].

Accordingly these claims are dismissed as frivolous and for failure to state a

claim upon which relief can be granted.

D. Deliberate Indifference to a Serious Medical Need

The Plaintiff alleges that Defendant Hartzog, a mental health provider,

was deliberately indifferent to a serious medical need by failing to provide

him with basic healthcare and mental health services. [Doc. 16-1 at 49-50].

These vague allegations fail to state a claim for deliberate indifference to a

serious medical or mental health need for the reasons set forth in the Order

on initial review of the Complaint. [See Doc. 13 at 10-11]. Further, to the

extent that the Plaintiff merely reiterates his allegations about the allegedly

inhumane conditions of confinement, this claim is dismissed for the reasons

discussed in Section C, supra. Accordingly, the Plaintiff’s claim for deliberate

indifference to a serious medical or mental health need is dismissed.

E. Retaliation

The Plaintiff reiterates his retaliation claims against Defendants Colvin

and Dellinger, and they pass initial review for the reasons previously stated.

[Doc. 16-1 at 67-69; see Doc. 13 at 15-16]. To the extent that the Plaintiff

again makes vague and conclusory allegations of retaliation that are not

clearly attributed to any Defendant(s), they are dismissed for the reasons

previously stated. [See Doc. 16 at 6, 8; Doc. 16-1 at 2, 9; Doc. 13 at 15 n.3].

The Plaintiff makes new retaliation claims against Defendants Clawson

and Stockton for, inter alia, using excessive force in response to the Plaintiff’s

complaints about staff. [Doc. 16-1 at 54-55, 74]. These claims are sufficient

to pass initial review. The Plaintiff also attempts to state a new retaliation

claim against Defendant Honeycutt. Specifically, he alleges that Honeycutt

charge him with a B-24 infraction for disrespect in retaliation for the Plaintiff’s

“accurate cartoon drawing of [Honeycutt’s] complete failure to administrate.”

[Doc. 16-1 at 20-21]. This claim is self-defeating because the Plaintiff admits

the conduct for which he received the disciplinary charge. [Id.]. Thus, he

has not plausibly alleged that the disciplinary charge was causally related to

any protected activity. See Martin v. Duffy, 977 F.3d 294, 299-300 (4th Cir.

2020) (discussing the same-decision test).

Accordingly, the Plaintiff’s retaliation claims have passed initial review

against Defendants Covin, Dellinger, Clawson, and Stockton, and the

remaining retaliation claims are dismissed.

F. Property Deprivations

The Plaintiff claims that Defendant Clawson damaged his glasses and

stole his personal property. [Doc. 16-1 at 9, 54].

The Fourteenth Amendment’s Due Process Clause provides that no

person shall be deprived of “life, liberty, or property, without due process of

law.” U.S. Const. Amend XIV. The first inquiry in any due process challenge

is whether the plaintiff has been deprived of a protected interest in property

or liberty that was accomplished by state action. Tigrett v. The Rector and

Visitors of the Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002); Stone v. Univ.

of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988). Where a state

employee’s random, unauthorized act deprives an individual of property,

either negligently or intentionally, the individual is relegated to his state post-

deprivation process, so long as the State provides an adequate post-

deprivation remedy. Parratt v. Taylor, 451 U.S. 527 (1981), overruled on

other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Hudson v.

Palmer, 468 U.S. 517 (1984); see Gallimore v. Sink, 27 N.C.App. 65, 67, 218

S.E.2d 181, 182 (1975) (under North Carolina law, an action for conversion

will lie against a public official who wrongfully deprives an owner of his

property by an unauthorized act); Wilkins v. Whitaker, 714 F.2d 4, 6 (4th Cir.

1983) (due process satisfied where North Carolina tort law provides an

adequate avenue for relief for state prisoner). The Parratt-Hudson doctrine

does not apply, however, to deprivations that are a “result of some

established state procedure.” Logan v. Zimmerman Brush Co., 455 U.S.

422, 435-36 (1982).

The Plaintiff appears to allege that Defendant Clawson’s actions were

contrary to prison policy. [See Doc. 16-1 at 9, 54]. The Plaintiff thus has an

adequate post-deprivation remedy for these incidents. Accordingly,

pursuant to the Parratt-Hudson doctrine, this claim is dismissed.

G. Excessive Force

The Plaintiff alleges that Defendant Clawson shoved him from behind

while he was restrained, causing his face to hit a wall; and that Defendant

Stockton pinned the Plaintiff’s neck to a wall with his forearm, cutting off his

airflow. [Doc. 16-1 at 2, 6, 54-55]. The Plaintiff also appears to claim that

Defendant Honeycutt is liable as a supervisor for “leaving [him] in harm’s way

to be assaulted by staff” after the Plaintiff repeatedly expressed fear for his

safety. [Id. at 21].

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). In adjudicating an excessive force claim, the Court must

consider such factors as the need for the use of force, the relationship

between that need and the amount of force used, the extent of the injury

inflicted, and, ultimately, whether the force was “applied in a good faith effort

to maintain or restore discipline, or maliciously and sadistically for the very

purpose of causing harm.” Whitley, 475 U.S. at 320-21. 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 v. Stroud, 13 F.3d

791, 799 (4th Cir. 1994).

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

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

claim for the use of excessive force against Defendants Clawson and

Stockton. However, the allegations against Defendant Honeycutt are too

vague and conclusory to state a plausible claim for supervisory liability.

Accordingly, the excessive force claim will be allowed to proceed against

Defendants Clawson and Stockton have passed initial review, but the

supervisory claim against Defendant Honeycutt is dismissed.

H. Access to the Courts

The Plaintiff contends that he is being denied access to the courts

because “NCDAC … does not grant inmates law library access making it

almost impossible to file any claim in court without Prisoner Legal Services

help.” [Doc. 16-1 at 2].

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 only

requires 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).

Here, the Plaintiff fails to allege any actual injury whatsoever, and

accordingly, he has failed to state a claim upon which relief can be granted.

The Plaintiff’s claim that he was denied access to the courts is therefore

dismissed.

G. Disciplinary Proceedings

The Plaintiff generally claims that he was denied due process with

regards to prison disciplinary proceedings. [Doc. 16-1 at 2]. In the Order on

initial review of the Complaint, the Court noted that the claims pertaining to

prison discipline appeared to be barred by Heck v. Humphrey, 512 U.S. 477

(1994). [Doc. 13 at 18-19]. The Plaintiff has failed to explain why the prison

disciplinary claims in the Amended Complaint are not barred by Heck.

Moreover, the allegations are too vague and conclusory to state a claim

against any Defendant. Accordingly, the Plaintiff’s claims pertaining to the

prison disciplinary proceedings are dismissed.

H. Supplemental Jurisdiction

The Plaintiff appears to assert claims under North Carolina law for

gross negligence, the negligent infliction of emotional distress, the intentional

infliction of emotional distress, and assault and battery.

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 28 U.S.C. § 1367(c)(3). A district court may also

dismiss the related state claims if there is a good reason to decline

jurisdiction. See 28 U.S.C. § 1367(c)(1), (2), and (4). And without a § 1983

claim, the Court will not exercise supplemental jurisdiction over an alleged

violation of North Carolina law. See Artis, 138 S.Ct. at 595 (when a district

court dismisses all claims independently qualifying for the exercise of federal

jurisdiction, it “ordinarily dismiss[es] all related state claims.”); see 28 U.S.C.

§ 1367(c)(3).

The Plaintiff appears to assert claims for assault and battery against

Defendants Clawson and Stockton. [Doc. 16-1 at 2, 54-55, 74]. 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). While a civil action for assault is available under North Carolina law

against one who uses force for the accomplishment of a legitimate purpose

such as justifiable arrest, the use of such force under the given

circumstances must be excessive for the claimant to prevail. Myrick v.

Cooley, 91 N.C.App. 209, 215, 371 S.E.2d 492, 496 (1988). “The question

of ‘[w]hether an officer has used excessive force is judged by a standard of

objective reasonableness.’” Jordan v. Civil Service Bd., 153 N.C.App. 691,

698, 570 S.E.2d 912, 918 (2002) (quoting Clem v. Corbeau, 284 F.3d 543,

550 (4th Cir. 2002)). The Plaintiff’s § 1983 excessive force claims have

passed initial review against Defendants Clawson and Stockton, and his

assault and battery claims are based on the same incidents. The Court will,

therefore, exercise supplemental jurisdiction over the Plaintiff’s claims for

assault and battery against Defendants Clawson and Stockton at this time.

The Plaintiff additionally appears to assert claims: for gross negligence

against Defendant Dellinger and other unnamed prison staff with regards to

the use and disposal of “dip” tobacco [Doc. 16-1 at 2, 67, 75]; for the

negligent infliction of emotional distress against Defendant Honeycutt for

“leaving [him] in harm’s way to be assaulted by staff” after the Plaintiff

“expressed fear for [his] safety….” [id. at 21, 72]; and for the intentional

infliction of emotional distress against Defendant Dellinger for using “dip” in

the prison, against the “[e]mployees of DAC” who sprayed their used “dip”

with mace, chemicals, and urine, and against NCDAC for the Plaintiff’s

COVID-19 infection and panic attacks [Doc. 16-1 at 2, 72, 75]. No related

federal claims have passed initial review, and accordingly, the Court declines

to exercise supplemental jurisdiction over them at this time. See 28 U.S.C.

§ 1367(a), (c).

IV. CONCLUSION

In sum, the Amended Complaint has passed initial review against

Defendants Colvin, Dellinger, Clawson and Stockton for retaliation, and

against Defendants Clawson and Stockton for the use of excessive force.

The claims against NCDAC are dismissed with prejudice and 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 Colvin, Dellinger, Clawson, and Stockton, who are alleged to be

current or former employees of NCDPS.

ORDER

IT IS, THEREFORE, ORDERED that:

(1) The Amended Complaint [Doc. 16] has passed initial review

against Defendants Colvin, Dellinger, Clawson and Stockton for

retaliation, and against Defendants Clawson and Stockton for the

use of excessive force.

(2) The Plaintiff’s claims against NCDAC are DISMISSED WITH

PREJUDICE.

(3) The Plaintiffs remaining claims are DISMISSED WITHOUT

PREJUDICE.

(4) The Clerk of Court shall commence the procedure for waiver of

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

Dellinger, Clawson, and Stockton, who are alleged to be current

or former employees of NCDPS.

IT IS SO ORDERED.

Signed: March 9, 2022

Martifi Reidinger ey

Chief United States District Judge “AES

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