# Carmichael v. Xayavong > District Court, W.D. North Carolina · March 17, 2022 URL: https://www.frixlaw.com/law-library/cases/10258272 ## Case - **Court:** District Court, W.D. North Carolina - **Decided:** March 17, 2022 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10258272 ## Opinion text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10258272. Public record. Not legal advice.