The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:22-cv-00003-MR
QUAMAINE DESHAWN )
CARMICHAEL, )
)
Plaintiff, )
)
vs. )
)
FNU XAYAVONG, ) ORDER
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on initial review of the pro se
Complaint [Doc. 1]. The Plaintiff is proceeding in forma pauperis. [Doc. 7].
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 Alexander
Correctional Institution.1 He names as the sole Defendant FNU Xayavong,
a correctional officer at Alexander CI. The Plaintiff asserts that the
Defendant violated the Eighth Amendment by spraying his eyes with pepper
spray while the Plaintiff was complying with orders, which caused severe
pain and injuries. The Plaintiff seeks $300,000 in compensatory damages.
1 The Plaintiff is presently incarcerated at the Granville Correctional Institution.
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
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 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 body of the Complaint contains allegations against individuals who
are not named as defendants in the caption as required by the Federal Rules
of Civil Procedure. Fed. R. Civ. P. 10(a). It does not appear that the Plaintiff
is attempting to assert claims against these individuals; had he attempted to
do so, these allegations would be dismissed. 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)).
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.
Taking the allegations as true for the purposes of initial review, and
construing all inferences in the Plaintiff’s favor, he has stated a claim for the
use of excessive force against Defendant Xayavong. This claim has passed
initial review.
IV. CONCLUSION
In sum, the Complaint has passed initial review against Defendant
Xayavong for the use of excessive force.
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 Defendant Xayavong, who is alleged to be a current or former
employee of NCDPS.
ORDER
IT IS, THEREFORE, ORDERED that:
(1) The Complaint [Doc. 1] has passed initial review against
Defendant Xayavong for the use of excessive force.
(2) |The Clerk of Court shall commence the procedure for waiver of
service as set forth in Local Civil Rule 4.3 for Defendant
Xayavong, who is alleged to be a current or former employee of
NCDPS.
The Clerk is respectfully instructed to mail Plaintiff an Opt-In/ Opt-Out
form pursuant to the Standing Order in Misc. Case No. 3:19-mc-00060-FDW
and a copy of this Order.
IT IS SO ORDERER,.,...4: March 17, 2022
Martifi Reidinger ee
Chief United States District Judge AS