Torres v. Ishee

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:21-cv-00068-MR

JONATHAN ANTHONY LEE TORRES, )

)

Plaintiff, )

)

vs. )

)

TODD ISHEE, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

Second Amended Complaint [Doc. 25]. 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 Marion Correctional

Institution, where he is still incarcerated. On November 8, 2021, the

Complaint passed initial review in part, was dismissed in part, and the

Plaintiff was granted the opportunity to amend. [Doc. 16]. The Plaintiff then

filed an Amended Complaint adding new claims and Defendants. [Doc. 21].

On February 7, 2022, the Amended Complaint passed initial review on

claims of unconstitutional conditions of confinement, for violating his religious

freedom under the First Amendment and the Religious Land Use and

Institutionalized Persons Act (RLUIPA), for retaliation, and for interfering with

the mail. [Doc. 23]. The Plaintiff’s claims under the Religious Freedom

Restoration Act (RFRA) and for respondeat superior were dismissed with

prejudice, and the remaining claims were dismissed without prejudice. [Id.].

The Court noted that the Plaintiff had filed a separate action, Case No. 1:21-

cv-157-MR, which was dismissed as duplicative of the instant case. [Id. at

3]. It therefore granted the Plaintiff 30 days within which to file a Second

Amended Complaint to add any additional claims from Case No. 1:21-cv-157

to the present action. [Id.].

The Second Amended Complaint is now before the Court for initial

review. [Doc. 25]. The Plaintiff seeks to add as a Defendant Saint Tapp, a

Marion CI unit manager [id. at 16], and to assert new claims for conspiracy

under 42 U.S.C. §§ 1983 and 1985(3) [id. at 28], and for assault and battery

and the intentional infliction of emotional distress and under North Carolina

law [id. at 57-58]. He seeks a declaratory judgment; injunctive relief;

compensatory, punitive, and nominal damages; reasonable attorney’s fees1

1 Attorney fees would not appear to be available, as the Plaintiff is presently

unrepresented.

and costs; further relief that the Court deems just and appropriate; and a jury

trial. [Id. at 1, 5].

II. STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must

review the Second 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 Second

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. DISCUSSION2

A. Parties

To the extent that the Second Amended Complaint contains

allegations against individuals who are not named as defendants, and which

are asserted on behalf of other inmates; they are dismissed for the reasons

set forth in the previously-issues Orders on initial review. [See Doc. 16 at 3-

5; Doc. 23 at 4].

B. Conditions of Confinement

The Plaintiff again claims that the Defendants are exposing him to

unconstitutional conditions of confinement. [Doc. 25 at 24, 31, 43-52]. For

the reasons stated in its prior Orders [Doc. 16 at 5-6; Doc. 23 at 4-5], the

Court concludes that the Plaintiff’s claims for unconstitutional conditions of

confinement, as stated against all of the named Defendants, are sufficient to

survive initial review.

C. Due Process

2 The Second Amended Complaint comprises 123 pages of allegations and attachments.

The claims have been liberally construed, reorganized, and restated. Allegations that are

vague, appear to be extraneous, or that the Court cannot clearly attribute to any

Defendant(s) will not be separately discussed. [See, e.g., Doc. 25 at 27 (referring to

“staff”)]. Any argument or claim not specifically addressed in this Order has been

considered and rejected.

The Plaintiff alleges that Defendants Cothron and Swink placed him in

the RDU without due process [Doc. 25 at 27, 32-35]; that the RDU Sanction

Matrix permits punishment without due process [id. at 35]; that he is not

receiving regular classification reviews [id. at 34]; and that RDU has

extended the Plaintiff’s stay in prison “by not allowing him to earn the correct

amount of gain time” [id. at 34-35, 39].

The Plaintiff’s allegations about his RDU placement, the lack of regular

classification reviews, and the sanction matrix fail to state a claim for the

reasons previously stated. [See Doc. 16 at 6-10; Doc. 23 at 5].

Further, the Plaintiff has failed to state a due process claim regarding

the amount of gain time he is being allowed to earn. It is well settled that

“the federal courts do not sit to supervise state prisons,” and “the day-to-day

functioning of state prisons . . . are not the business of federal judges.”

Meachum v. Fano, 427 U.S. 215 (1976). Therefore, “the classifications and

work assignments of prisoners . . . are matters of prison administration, within

the discretion of the prison administrators, and do not require fact-finding

hearings as a prerequisite for the exercise of such discretion.” Altizer v.

Paderick, 569 F.2d 812, 813 (4th Cir. 1978). Although an inmate may

possess a liberty interest when a loss of already-earned statutory good-time

credits is at issue, Wolff v. McDonnell, 418 U.S. 539, 557 (1974), he “does

not have a liberty interest … in earning future good-time credits at a particular

rate,” Paylor v. Lewis, 5:12-CT-3103-FL, 2016 WL 1092612, at *12 (E.D.N.C.

March 21, 2016). The Plaintiff’s allegation that he is not being credited with

appropriate gain time for his participation in the RDU program therefore fails

to state a due process claim. See, e.g., Boone v. Hopkins, 804 F.2d 677 (4th

Cir. 1986) (affirming dismissal of prisoner’s claim that he was deprived of

accumulative accredited time off for a period of four years, without notice or

the benefit of a regular classification hearing); Altizer, 569 F.2d at 812-13

(prisoner was not denied any constitutional right when prison administrators

removed him from an assignment to an inmate advisor program, even though

such may have implications for a later right to parole); Belk v. Smith, No.

1:10-cv-724, 2014 WL 1835385, at *3 (M.D.N.C. May 8, 2014) (plaintiff’s

allegation that the defendants arbitrarily limited his ability to work, and

therefore earn gain time, while incarcerated did not concern a protected

liberty interest). The Plaintiff’s due process claims are therefore dismissed.

D. Equal Protection

The Plaintiff continues to assert that he is being treated differently from

close custody general population inmates who are not in RDU. [Doc. 25 at

36-38]. He further claims that Defendants Coffee and Ingram denied him

equal protection when they used excessive force against him. [Id. at 36].

The Plaintiff has again failed to sufficiently allege that he is being treated

differently than similarly situated inmates, or that any such treatment resulted

from purposeful discrimination, and therefore, his equal protection claims are

dismissed. [See Doc. 16 at 11; Doc. 23 at 5-6].

E. Policy Violations

The Plaintiff continues to assert that the Defendants violated various

NCDPS policies and procedures. [Doc. 25 at 29-30, 34-35, 38-42, 46-47].

These claims are dismissed for failure to state a claim upon which relief can

be granted for the reasons previously stated. [See Doc. 16 at 16-17; Doc.

23 at 6-7].

F. Religious Exercise

The Plaintiff continues to assert that he was denied his religious rights

under the First Amendment and the RLUIPA. [Doc. 25 at 69-70]. For the

reasons stated in its prior Order [see Doc. 23 at 7-8], the Court concludes

that the Plaintiff’s RLUIPA and First Amendment claims are sufficient to

survive initial review against all of the named Defendants.

G. Interference with Mail

The Plaintiff continues to allege that Defendant Carver interfered with

his right to send and receive mail. [Doc. 25 at 71-74]. This claim passes

initial review for the reasons previously stated. [See Doc. 23 at 9].

H. Retaliation

The Plaintiff continues to allege that Defendant Swink refused to

transfer him despite a conflict with staff [Doc. 25 at 61], and that Defendants

Coffee and Ingram mishandled legal materials, used excessive force, and

placed him in segregation for filing grievances as well as the instant lawsuit

[id. at 25-28, 60-63]. He further appears to allege that Defendant Tapp took

actions including adverse disciplinary action, segregation, and confiscation

of his legal materials in retaliation for the Plaintiff’s legal activities and

complaints about staff. [Id. at 63-64, 66-69].

The Plaintiff’s retaliation claims against Defendants Swink, Coffee, and

Ingram pass initial review for the reasons previously stated. [Doc. 23 at 9-

10]. The allegations of retaliation against Defendant Tapp are also sufficient

to state a claim and therefore pass initial review. [See id.].

I. Excessive Force

The Plaintiff continues to allege that Defendants Coffee and Ingram

used excessive force against him.3 [Doc. 25 at 28-29, 53-54]. The

allegations against these Defendants are sufficient to state a claim for the

3 The Plaintiff’s allegation of “failure to protect” is liberally construed as an excessive force

claim. [Doc. 25 at 28].

use of excessive force for the reasons previously stated.4 [Doc. 23 at 10-

11].

J. Conspiracy

The Plaintiff claims that Defendants Coffee and Ingram conspired

against him pursuant to 42 U.S.C. §§ 1983 and 1985(3) as follows: “It’s clear

that Defendant Coffee and Defendant Ingram conspired to engage in

intentional conduct of excessive force to cause Plaintiff harm which resulted

in injuries caused by reckless actions, disregard of duties and intentionally

deprived Plaintiff of his constitutional rights.” [Doc. 25 at 28].

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

4 Although the Plaintiff describes his alleged injuries and requests for medical care

following the use of force incident [see Doc. 25 at 5, 23], it does not appear that the

Plaintiff is attempting to state a claim for deliberate indifference to a serious medical need.

Even if he intended to do so, that claim would be dismissed because the Plaintiff has not

alleged that he had an objectively serious medical need to which any Defendant was

subjectively deliberately indifferent. See Young v. City of Mt. Ranier, 238 F.3d 567, 575-

76 (4th Cir. 2001) (deliberate indifference requires a showing that the defendant actually

knew of and disregarded a serious need for medical care). Further, to the extent that the

Plaintiff complains that the investigation into the incident was inadequate [see Doc. 25 at

29], such does not give rise to a § 1983 claim. See generally DeShaney v. Winnebago

County Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989) (“The Due Process Clauses

generally confer no affirmative right to governmental aid, even where such aid may be

necessary to secure life, liberty, or property interests of which the government itself may

not deprive the individual.”)); see, e.g., Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir.

2002) (arrestee had no constitutional right to internal investigation of excessive force

claim).

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). To

establish a “conspiracy to deny equal protection of the laws” under section

1985(3), a plaintiff must prove: (1) a conspiracy of two or more persons, (2)

who are motivated by a specific class-based, invidiously discriminatory

animus to (3) deprive the plaintiff of the equal enjoyment of rights secured

by the law to all, (4) and which results in injury to the plaintiff as (5) a

consequence of an overt act committed by the defendants in connection with

the conspiracy. Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995) (citing

Buschi v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985)).

An essential element of 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). Without such a meeting of the minds, the independent acts

of two or more wrongdoers do 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 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). General allegations that defendants entered into an agreement,

without sufficiently alleging plausible grounds to infer such an agreement,

fails to state a conspiracy claim. Wiggins v. 11 Kew Garden Court, 497 F.

App’x 262 (4th Cir. 2012).

The Plaintiff’s conclusory allegations fail to state a claim under either §

1983 or § 1985(3). Wiggins, 497 F. App’x at 264. Moreover, with regards to

§ 1985(3), the Plaintiff has failed to identify any discriminatory class-based

animus under which he was allegedly deprived of equal protection. See

Section D, supra. Accordingly, the Plaintiff’s conspiracy claims under § 1983

and § 1985(3) are dismissed for failure to state a claim upon which relief can

be granted.

K. Supplemental Jurisdiction

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).

1. Respondeat Superior

First, the Plaintiff continues to assert a claim of respondeat superior.

[Doc. 25 at 58-59]. This claim has been dismissed with prejudice [Doc. 23

at 11-13], and cannot proceed for the reasons previously stated.

2. Assault and Battery

Construing the Second Amended Complaint liberally, the Plaintiff

appears to assert claims for assault and battery against Defendants Coffee

and Ingram. [Doc. 25 at 57]

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 claim has passed initial review

against Defendants Coffee and Ingram, and the Plaintiff appears to assert

assault and battery claims against them for the same incident. The

allegations plausibly state assault and battery claims under North Carolina

law and the Court will, therefore, exercise supplemental jurisdiction over the

claims at this time.

3. Intentional Infliction of Emotional Distress

Finally, the Plaintiff asserts a claim for the intentional infliction of

emotional distress under North Carolina law. [Doc. 25 at 58].

The elements of intentional infliction of emotional distress are: “(1)

extreme and outrageous conduct, (2) which is intended to cause and does

cause (3) severe emotional distress.” Dickens, 302 N.C. at 452, 276 S.E.2d

at 335 (citations and quotation marks omitted). The severe emotional

distress required for intentional infliction of emotional distress is “any

emotional or mental disorder, such as for example, neurosis, psychosis,

chronic depression, phobia, or any other type of severe or disabling

emotional or mental condition which may be generally recognized and

diagnosed by professionals trained to do so.” Piro v. McKeever, 245 N.C.

App. 412, 416, 782 S.E.2d 367, 371 (2016), aff’d 369 N.C. 291, 794 S.E.2d

501 (citations omitted). Conduct is “extreme and outrageous” when it

“exceeds all bounds usually tolerated by a decent society.” Shreve v. Duke

Power Co., 85 N.C. App. 253, 257, 354 S.E.2d 357, 359 (1987) (citation and

quotations omitted).

The Plaintiff sets forth the elements of a claim for the intentional

infliction of emotional distress, but he fails to support this claim with any

factual allegations. Assuming arguendo that the Defendants engaged in

extreme and outrageous conduct, the Plaintiff has not alleged that their

actions were intended to cause, and did cause, a recognized severe and

disabling mental or emotional disorder. [See Doc. 25 at 5, 23 (alleging

physical injuries)]. Accordingly, the Court declines to exercise supplemental

jurisdiction over the Plaintiff’s claim for the intentional infliction of emotional

distress at this time.

IV. CONCLUSION

In sum, the Second Amended Complaint [Doc. 25] has passed initial

review: against Defendants Ishee, Carver, Bullis, Cothron, Swink, Suttle,

Ervin, Haynes, Bumgarner, Coffee, Ingram, Brendle, and Tapp for imposing

unconstitutional conditions of confinement, for violating his right to freely

exercise his religion, and for violating the RLUIPA; against Defendants

Swink, Coffee, Ingram, and Tapp for retaliation; against Defendants Coffee

and Ingram for the use of excessive force; and against Defendant Carver for

interfering with the mail. The Court will exercise supplemental jurisdiction

over the Plaintiff’s North Carolina assault and battery claims against

Defendants Coffee and Ingram. The remaining claims are dismissed as

stated in this Order.

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 Ishee, Carver, Bullis, Cothron, Swink, Suttle, Ervin,

Haynes, Bumgarner, Coffee, Ingram, Brendle, and Tapp, who are alleged

to be current or former employees of NCDPS.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The Second Amended Complaint [Doc. 25] has passed initial

review: against Defendants Ishee, Carver, Bullis, Cothron, Swink,

Suttle, Ervin, Haynes, Bumgarner, Coffee, Ingram, Brendle, and

Tapp for imposing unconstitutional conditions of confinement, for

violating his right to freely exercise his religion, and for violating the

RLUIPA; against Defendants Swink, Coffee, Ingram, and Tapp for

retaliation; against Defendants Coffee and Ingram for the use of

excessive force; and against Defendant Carver for interfering with

the mail.

2. The Court will exercise supplemental jurisdiction over the Plaintiff's

North Carolina assault and battery claims against Defendants

Coffee and Ingram.

3. The remaining claims are DISMISSED as stated in this Order.

4. The Clerk shall commence the procedure for waiver of service as

set forth in Local Civil Rule 4.3 for Defendants Ishee, Carver, Bullis,

Cothron, Swink, Suttle, Ervin, Haynes, Bumgarner, Coffee, Ingram,

Brendle, and Tapp who are alleged to be current or former

employees of NCDPS.

IT IS SO ORDERED.

Signed: March 17, 2022

Martifi Reidinger ey

Chief United States District Judge Ale

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