Opinion

Gause v. Jacobs

Court
District Court, W.D. North Carolina
Filed
Apr 11, 2022
Cited by
0 cases
Authority
More cited than 24.8%

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:22-cv-00099-MR

WALTER T. GAUSE, )

)

Plaintiff, )

)

vs. ) ORDER

)

)

STEPHEN JACOBS, et al., )

)

Defendants. )

________________________________ )

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

Complaint, filed under 42 U.S.C. § 1983 [Doc. 1], and Plaintiff’s Addendum

to his Complaint [Doc. 6].1

I. BACKGROUND

Pro se Plaintiff Walter T. Gause (“Plaintiff”) is a prisoner of the State of

North Carolina currently incarcerated at Scotland Correctional Institution

(“SCI”) in Laurinburg, North Carolina. He filed this civil rights action pursuant

to 42 U.S.C. §§ 1983 and 1985(3) on March 10, 2022, alleging violations of

his constitutional rights. [Doc. 1]. Plaintiff names Stephen Jacobs, identified

1 Plaintiff moved to proceed in this matter in forma pauperis. [Doc. 2]. Because Plaintiff

is subject to 28 U.S.C. § 1915(g)’s bar to filing civil actions in forma pauperis, the Court

ordered that Plaintiff pay the filing fee. [Doc. 5]. He has now done so. [See 4/1/2022

Docket Entry]. The Court, therefore, will proceed with its initial review pursuant to 28

U.S.C. § 1915A.

as the Warden of SCI; Yolanda Gause and FNU Covington, identified as

Captains at SCI; and unidentified “Staff” of SCI as Defendants, all in their

individual and official capacities. [Id.; Doc. 6 at 1-2]. It appears that Plaintiff

alleges as follows.

On November 3, 2021, Plaintiff complained of “filth and trash” in the

quarantine area at SCI because it had not been cleaned. Plaintiff alleges

that the quarantine area subjected him to a “health risk environment.” After

he complained, Defendant Covington and other custody staff harassed

Plaintiff and then brought him to an “operation holding cell.” Plaintiff alleges

that, on the same day, Defendant Covington intentionally and deliberately

assaulted Plaintiff with a deadly weapon. [Doc. 6 at 3]. On November 4,

2021, Plaintiff filed a grievance against Defendant Covington for Covington

placing a taser an inch from Plaintiff’s face. [Id. at 4].

As to Defendant Jacobs, Plaintiff alleges only that he, Plaintiff, sent a

copy of his grievance to Jacobs and received no response. [Id. at 6]. Plaintiff

also alleges that “each defendant et al. conspire & collude by joint

[participation] and systemic retaliation, campaine hars-ment,” and that

Defendant Gause, of no relation to Plaintiff, colludes with gang members and

a “great many staff.” [Id. at 3, 6]. Other than the vague references described

above, Plaintiff does not identify any particular conduct by any particular

“Staff” that he purports to name as a Defendant.

Finally, Plaintiff alleges that on February 8, 2022, he “sign[ed] for

protective custody due to the [illegible] corruption by staff et al., as well gang

member oppression & [illegible] threat of physical bodily harm, as well death

threats.” [Id. at 7].

Plaintiff claims this conduct violated his rights under the First, Eighth,

and Fourteenth Amendments. [Doc. 1 at 3]. Plaintiff alleges no injuries from

the alleged conduct other than “fear for his life.” [See Doc. 6 at 4]. For relief,

Plaintiff seeks declaratory judgment, a “preliminary judgment,”

compensatory and punitive damages, and indemnification. [Id. at 5; Doc. 6

at 8-9].

II. STANDARD OF REVIEW

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 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

A. Section 1983

“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 generally claims that his rights under the First, Eighth, and

Fourteenth Amendments were violated by Defendants’ conduct. Plaintiff,

however, does not allege what conduct he contends violated each right. The

Court, therefore, addresses those claims fairly raised by Plaintiff’s

allegations.

1. Official Capacity Claims

“[A] suit against a state official in his or her official capacity is not a suit

against the official but rather is a suit against the official’s office.” Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Because a state is not

a “person” under § 1983, state officials acting in their official capacities

cannot be sued for damages thereunder. Allen v. Cooper, No. 1:19-cv-794,

2019 WL 6255220, at *2 (M.D.N.C. Nov. 22, 2019). Furthermore, the

Eleventh Amendment bars suits for monetary damages against the State of

North Carolina and its various agencies. See Ballenger v. Owens, 352 F.3d

842, 844-45 (4th Cir. 2003). As such, Plaintiff has failed to state a claim for

relief against Defendants in their official capacities and these claims will be

dismissed.

2. First Amendment

An inmate has a clearly established First Amendment right to be free

from retaliation for filing lawsuits. See Booker v. S.C. Dep’t of Corrs., 855

F.3d 533, 540 (4th Cir. 2017); Thompson v. Commonwealth of Va., 878 F.3d

89, 110 (4th Cir. 2017). Inmates also have a protected First Amendment

right to complain to prison officials about prison conditions and improper

treatment by prison employees that affect them. See Patton v. Kimble, 717

Fed. App’x 271, 272 (4th Cir. 2018).

To state a colorable First Amendment retaliation claim, a plaintiff must

allege that (1) he engaged in protected First Amendment activity, (2) the

defendant took some action that adversely affected his First Amendment

rights, and (3) there was a causal relationship between his protected activity

and the defendant’s conduct. Martin v. Duffy, 977 F.3d 294, 299 (4th Cir.

2020) (quotation marks and citation omitted). Retaliation claims brought by

prisoners, however, are treated with skepticism because every act of

discipline by a prison official is retaliatory in that it responds directly to

prisoner misconduct. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).

Plaintiff alleges, that, due to his complaint regarding the quarantine

area, Defendant Covington and other custody staff harassed Plaintiff and

Defendant Covington threatened him with a taser.2 Taking Plaintiff’s

allegations as true and giving him the benefit of every reasonable inference,

the Court finds that Plaintiff’s First Amendment retaliation claim is not clearly

frivolous and survives initial review as to Defendant Covington in his

individual capacity.

3. Eighth Amendment

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,

2 Plaintiff also alleges that he was moved to a holding cell after complaining to prison

officials. To the extent that Plaintiff contends that such transfer was itself retaliatory, it

seems such transfer was a reasonable and appropriate response by prison officials to

Plaintiff’s concerns.

319 (1986). The Eighth Amendment protects prisoners from inhumane

methods of punishment and from inhumane conditions of confinement.

Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). “Prison conditions

may be harsh and uncomfortable without violating the Eighth Amendment

prohibition against cruel and unusual punishment.” Dixon v. Godinez, 114

F.3d 640, 642 (7th Cir. 1997).

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, 77 F.3d at 761. 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.

“The Supreme Court has held, however, that ‘not every malevolent

touch by a prison guard gives rise to a federal cause of action.’” Jackson v.

Holley, 666 Fed. App’x 242, 244 (4th Cir. 2016) (citing Wilkins v. Gaddy, 559

U.S. 34, 37, 130 S. Ct. 1175 (2010)). “An inmate who complains of a push

or a shove that causes no discernible injury almost certainly fails to state a

valid excessive force claim.” Wilkins, 559 U.S. at 38, 130 S. Ct. 1175

(internals quotation marks omitted). Moreover, the law is well-established

that taunting comments, slurs, threats, and other verbal harassment by

correctional facility staff, without more, are not actionable under § 1983.

Wilson v. United States, 332 F.R.D. 505, 520 (S.D. W.Va. Aug. 19, 2019)

(collecting cases).

Here, taking Plaintiff’s allegations as true and drawing all reasonable

inferences in Plaintiff’s favor, Plaintiff has not stated a claim under the Eighth

Amendment. At most, Plaintiff alleges that Defendant Covington threatened

him with a taser. While certainly uncomfortable and perhaps frightening to

Plaintiff, this is not an Eighth Amendment violation. Plaintiff’s allegation of

harassment also plainly fails to state a claim under the Eight Amendment.

The Court will dismiss this claim.

4. Fourteenth Amendment

Plaintiff does not allege how he believes his Fourteenth Amendment

rights were violated. To the extent Plaintiff contends that Defendant Jacobs

violated his rights under the Fourteenth Amendment for failing to respond to

his grievance, this claim fails. “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). The

Court sees no other Fourteenth Amendment rights fairly implicated by

Plaintiff’s allegations. As such, Plaintiff has a failed to state a claim for relief

under the Fourteenth Amendment and this claim will be dismissed.

B. Section 1985

To state a claim under Section 1985, a plaintiff must allege “concrete

facts” showing that defendants entered a conspiracy which deprived the

plaintiff of his civil rights. Francis v. Giacomelli, 588 F.3d 186, 196-97 (4th

Cir. 2009). Section 1985(3) enjoins conspiracies that deprive plaintiff of his

civil rights based on some “racial” or otherwise “class-based, invidiously

discriminatory animus.” 42 U.S.C. § 1985; Williams v. Carolinas Healthcare

System, No. 3:12-cv-241-GCM, 2012 WL 2994699, at *5 (W.D.N.C. July 23,

2012).

Courts reject “section 1985 claims whenever the purported conspiracy

is alleged in a merely conclusory manner, in the absence of concrete

supporting facts.” Williams, at *5 (quoting Simmons v. Poe, 47 F.3d 1370,

1377 (4th Cir. 1995)). The Fourth Circuit has “rarely, if ever, found that a

plaintiff has set forth sufficient facts to establish a section 1985 conspiracy.”

Simmons, 47 F.3d at 1377. To allege a conspiracy, a party must show that

two or more persons acted in concert to commit an unlawful act or to commit

a lawful act by unlawful means. See Simmons, 47 F.3d at 1376. Further, “a

party must show an agreement or meeting of the minds between parties to

inflict a wrong or injury upon another that results in damage.” Williams, at *5

(citations omitted). A plaintiff must also show harm resulting from the alleged

conspiracy. Id. (citations omitted).

Taking Plaintiff’s allegations as true and drawing reasonable

inferences therefrom in Plaintiff’s favor, Plaintiff has plainly failed to allege a

conspiracy to deprive his civil rights. Plaintiff makes only vague references

to “collusion” among and between Defendants and nothing more. Plaintiff,

therefore, has failed to state a claim upon which relief can be granted under

42 U.S.C. § 1985. The Court will dismiss this claim.

C. “Staff” Defendants

Plaintiff names as Defendants and references in his Complaint “Staff,”

who allegedly participated in certain alleged conduct. [See Docs. 1, 6]. If

Plaintiff intends to name these unidentified individuals as Defendants in this

matter, he must name them individually as John Doe defendants until they

can be identified through discovery or otherwise. He must also allege in what

conduct each individually named Doe Defendant engaged. Simply naming

them as “staff” is insufficient and improper. The Court, therefore, will dismiss

the “Staff” Defendants.

IV. MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff also moves for appointment of counsel. [Doc. 6 at 9-10]. As

grounds, Plaintiff states he is unable to afford an attorney, has no access to

a law library, the issues are complex and will require significant research, his

imprisonment will limit his ability to litigate this matter, a trial will involve

conflicting testimony, and an attorney would be better able to present

evidence and cross examine witnesses effectively. [Id.].

A plaintiff must present “exceptional circumstances” to require the

Court to seek the assistance of a private attorney for a plaintiff who is unable

to afford counsel. Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). The

Plaintiff here has not presented exceptional circumstances that justify

appointment of counsel. Plaintiff’s request for counsel, therefore, will be

denied.

IV. CONCLUSION

In sum, the Complaint survives initial review under 28 U.S.C. § 1915A

as to Plaintiff’s First Amendment retaliation claim against Defendant

Covington in his individual capacity. Plaintiff’s remaining claims and the

remaining Defendants will be dismissed in accordance with the terms of this

Order.

Plaintiff’s motions for issuance of summons [Docs. 10, 11] will be

denied. The Court will order service on Defendant Covington as provided

below. Finally, the Court will deny Plaintiff’s request for counsel as provided

above.

Plaintiff is strongly cautioned to carefully review the Order of

Instructions [Doc. 3], the Local Rules of this Court, and the Federal

Rules of Civil Procedure before filing further documents with the Court

in this matter. Plaintiff has a history of filing duplicative, ineffectual,

and improper documents with this Court. Such documents may be

stricken and/or summarily denied by this Court without further notice

to Plaintiff should he persist in filing such documents in this action.

ORDER

IT IS, THEREFORE, ORDERED that all claims asserted in this matter

as to all Defendants are hereby DISMISSED for failure to state a claim,

except for Plaintiff’s First Amendment retaliation claim against Defendant

Covington in his individual capacity, which is allowed to pass initial review.

IT IS FURTHER ORDERED that Defendants Jacobs, Gause, and

“Staff” are hereby DISMISSED as Defendants in this matter for failure to

state a claim.

IT IS FURTHER ORDERED that Plaintiff's motions [Docs. 10, 11] and

motion for appointment of counsel [Doc. 6 at 10] are DENIED.

IT IS FURTHER ORDERED that the Clerk of Court shall commence

the procedure for waiver of service as set forth in Local Civil Rule 4.3 for

Defendant Covington, who is alleged to be a current or former employee of

NCDPS.

IT IS SO ORDERED. Signed: April 11,2022

Martifi Reidinger ey

Chief United States District Judge AS

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