Abdullah-Malik v. Cathy

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:22-cv-00114-MR

NAFIS AKEEM-ALIM )

ABDULLAH-MALIK,1 )

)

Plaintiff, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

EDDIE CATHEY, et al., )

)

Defendants. )

___________________________ )

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

Amended Complaint [Doc. 18]. The Plaintiff is proceeding in forma pauperis.

[Doc. 9].

I. BACKGROUND

The pro se Plaintiff, who is a pretrial detainee at the Mecklenburg

County Jail, filed this case pursuant to 42 U.S.C. § 1983 addressing incidents

that allegedly occurred at the Union County Jail (UCJ) between July 29, 2020

1 According to the Mecklenburg County Sheriff’s Office (MCSO) website, the Plaintiff’s

name is Nafisakeem Abdullah Malik. See https://mecksheriffweb.mecklenburgcountync.

gov/Inmate/Details?pid=0000213386&jid=20051671&activeOnly=True&prisType=ALL&

maxrows=48&page=1 (last accessed June 15, 2022); Fed. R. Evid. 201. The website

reflects that the Plaintiff was detained on December 19, 2020 on multiple charges

including conspiracy, felony larceny, and breaking or entering.

and December 19, 2020.2 [Doc. 1]. Before the Complaint was screened for

frivolity, the Plaintiff filed a number of Motions in which he attempted to

present piecemeal allegations and sought leave to amend. [See Docs. 3,

12, 16]. On May 5, 2022, the Court struck the Plaintiff’s Motions and granted

him 30 days to file a superseding Amended Complaint. [Doc. 17]. The Court

instructed the Plaintiff to submit his Amended Complaint on a § 1983 form,

clearly identify the Defendants against whom he intends to proceed, and set

forth facts describing how each of the Defendants allegedly violated his

rights. [Id at 4]. The Amended Complaint [Doc. 18] is now before the Court

for initial review.

The Plaintiff names as Defendants: Eddie Cathey, the sheriff of Union

County; D. Rogers, a Union County Sheriff’s Office (UCSO) captain and the

UCJ administrator; FNU Pursor, FNU Rucker, and FNU Philmore, UCSO

sergeants; FNU Kiker, FNU Hodgens, K. Martin, and FNU Grooms, UCSO

deputies and detention officers; Pam LNU and FNU Speers, Union County

Health Department nurses; Bill Beam, the sheriff of Lincoln County; Mike

Miller, the Lincoln County district attorney; Kevin Tolson, the sheriff of York

2 Although the Plaintiff contends that the claims are “carrying over to date in part inasmuch

Union County participating in 1st, 4th, 5th, 6th, 8th, & 14th Amend violation,” he fails to

address any incidents that are alleged to have occurred since he entered MCJ on

December 19, 2020. [Doc. 18 at 8].

County; Lori Fields, a field agent and administrator for the York County

Sheriff’s Office; and “Jane-John Does at all relevant times.”3 [Doc. 18 at 5-

7, 9]. He asserts claims that his rights have been violated under “(1st) (4th)

(5th) (6th) (8th), and (14th) Amendments N.C. Gen. Stat. Chapter 17 (habeas

corpus) N.C. Gen. Stat. § 15A601-603, and N.C. Gen. Stat. § 15A-721 - §

760.” [Id. at 5]. As injury, he asserts: “enhanced PTSD, anxiety, OCD &

EBD psychological effects long term (23-1) twenty three and one lockup

mental health disorders. Taser prongs never removed, broken neck

vertebral enhanced cervical spinal stenosis, neuropathy, numbness in part

paralysis….” [Id. at 14]. He seeks a declaratory judgment, and

compensatory and punitive damages. [Id.].

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 “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

3 The Plaintiff specifies that he is asserting claims against Defendants Cathey, Rogers,

Pursor, Rucker, Philmore, Kiker, Hodgens, Marin, and Grooms in their individual and

official capacities. [Doc. 18 at 4-6]. He does not indicate whether he is attempting to sue

the remaining Defendants in their official capacities, individual capacities, or both.

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 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. 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).

A. Parties

The body of the Amended Complaint contains allegations against

individuals who are not named as defendants in the caption as required by

Rule 10(a) of the Federal Rules of Civil Procedure. [See, e.g., Doc. 18 at

10-11 (referring to Deputy Steward)]; Fed. R. Civ. P. 10(a) (“The title of the

complaint must name all the parties”); Myles v. United States, 416 F.3d 551

(7th Cir. 2005) (“to make someone a party the plaintiff must specify him in the

caption and arrange for service of process.”); Perez v. Humphries, No. 3:18-

cv-107-GCM, 2018 WL 4705560, at *1 (W.D.N.C. Oct. 1, 2018) (“A plaintiff’s

failure to name a defendant in the caption of a Complaint renders any action

against the purported defendant a legal nullity”). The allegations directed at

individuals not named as Defendants are dismissed without prejudice.

The Plaintiff names as Defendants “Jane-John Does at all times

relevant.” [Doc. 18 at 7, 9]. John Doe suits are permissible only against

“real, but unidentified, defendants.” Schiff v. Kennedy, 691 F.2d 196, 197

(4th Cir. 1982). The designation of a John Doe defendant is generally not

favored in the federal courts; it is appropriate only when the identity of the

alleged defendant is not known at the time the complaint is filed and the

plaintiff is likely to be able to identify the defendant after further discovery.

See Chidi Njoku v. Unknown Special Unit Staff, 217 F.3d 840 (4th Cir. 2000).

“[I]f it does not appear that the true identity of an unnamed party can be

discovered through discovery or through intervention by the court, the court

could dismiss the action without prejudice.” Schiff, 691 F.2d at 198 (footnote

omitted). Here, the Plaintiff fails to make any factual allegations regarding

the Doe Defendants whatsoever. See Fed. R. Civ. P. 8(a) (a short and plain

statement of the claim is required); Dickson v. Microsoft Corp., 309 F.3d 193,

201-02 (4th Cir. 2002) (a pleader must allege facts, directly or indirectly, that

support each element of the claim). Further, he has not demonstrated any

likelihood that these Defendants could be identified through discovery. See

Schiff, 691 F.2d at 198. Therefore, Defendants “John-Jane Doe” are

dismissed without prejudice from this action.

As to Defendants Beam, Miller, Tolson, and Fields, the Amended

Complaint contains no factual allegations against them. Accordingly these

individuals will be dismissed as Defendants from this action. See Fed. R.

Civ. P. 8(a); Dickson, 309 F.3d at 201-02.

Many of the Plaintiff’s claims are so vague and confusing that the Court

cannot determine the incidents that are alleged to have occurred, or cannot

identify the Defendant(s) to whom the allegations refer.4 See Fed. R. Civ. P.

4 For instance, he alleges: “I have been discriminated against by Sheriff Eddie Cathey, et

al. at all times relevant, biasly [sic], arbitrary, capricious, wanton acts … and Jail

Administrator et al., Captain D. Rogers watched observed [and] [r]efused to intervene”

8(a); Dickson, 309 F.3d at 201-02; see also Pliler v. Ford, 542 U.S. 225, 231

(2004) (“District judges have no obligation to act as counsel or paralegal to

pro se litigants.”); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.

1985) (the courts are not required to be “mind readers” or “advocates” for

incarcerated or pro se litigants). These claims are dismissed as frivolous

and for failure to state a claim upon which relief can be granted.

B. Official Capacity Claims

The Plaintiff purports to sue Defendants Cathey, Rogers, Pursor,

Rucker, Philmore, Kiker, Hodgens, Martin, and Grooms in their official

capacities. Suits against sheriffs and their employees in their official

capacities are, in substance, claims against the office of the sheriff itself.

Gannt v. Whitaker, 203 F.Supp.2d 503, 508 (M.D.N.C. Feb. 26, 2002). To

succeed on such a claim, a plaintiff must allege that a Sheriff’s Office policy

or custom resulted in the violation of federal law. See Monell v. New York

City Dep’t of Social Servs., 436 U.S. 658, 694 (1978) (holding that in an

official capacity suit, the entity’s “policy or custom” must have played a part

[Doc. 18 at 15]; “racially motivated, maliciously, malice gross negligence, arbitrary,

capricious, wanton care” [id.]; “[o]ngoing medical negligence, gross negligence, impeded

requests, grievances, negated wheelchair usage, negated impeded other RN LPN notes

to (HCP) health Care Providers abuse of fall risk status fabricated to take mattress house

in remote area of abuse” [id.]; “Rucker Sergeant, et al., at all times relevant all applies as

above listed Defendant Pursor et al. precluding detention with Deputy Steward and

precluding groping” [id. at 11]; and “… ongoing medical gross negligence, mail

impediments, no access to adequate law library (etc)….” [id. at 16].

in the violation of federal law); Oklahoma City v. Tuttle, 471 U.S. 808, 818-

20 (1985) (discussing same). Here, the Plaintiff does not allege that any

Sheriff’s Office policy or custom played a part in the alleged violation of his

constitutional rights. Accordingly, the Plaintiff’s official-capacity claims

against these Defendants are dismissed without prejudice.5

C. Grievances

The Plaintiff claims that Defendant Cathey “was served notices via

kiosk (electronic) request and grievance U.S. Mail Postal Service regarding

his subordinate(s) et al. misconduct and refuse[d] to cure, to include notice(s)

by and through the Union County Court.” [Doc. 18 at 9].

To establish liability under 42 U.S.C. § 1983, a plaintiff must show that

the defendants “acted personally” to cause the alleged violation. See

Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (citation omitted). As

such, the doctrine of respondeat superior does not apply in actions brought

under § 1983. See Monell, 436 U.S. at 694. However, 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

5 To the extent that the Plaintiff intended to sue the remaining Defendants in their official

capacities, any such claims are dismissed for the same reasons.

alleged offensive practices;” and (3) that there was an “affirmative causal

link” between his inaction and the constitutional injury.” Shaw v. Stroud, 13

F.3d 791, 799 (4th Cir. 1994) (internal quotation marks omitted).

Here, the Plaintiff appears to allege that Defendant Cathey’s only

involvement with the incidents at issue was by failing to address the Plaintiff’s

complaints and grievances. “[T]he 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). “An

inmate thus cannot bring a § 1983 claim alleging denial of a specific

grievance procedure.” Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 541 (4th

Cir. 2017). Because the Plaintiff has no constitutional right to a grievance

procedure, Defendant Cathey’s alleged failure to address his grievances

does not state a § 1983 claim.

These allegations are also too vague and conclusory to state a claim

against Defendant Cathey on a theory of supervisory liability. The Plaintiff

does not plausibly allege that Defendant Cathey had any actual knowledge

of any alleged violations of the Plaintiff’s constitutional rights, tacitly

authorized or was deliberately indifferent to the same, or that any causal

relationship existed between Cathey’s conduct and the Plaintiff’s

constitutional injury. It appears instead that the Plaintiff is attempting to hold

Defendant Cathey liable on a theory of respondeat superior, which fails to

state a § 1983 claim. Accordingly, the claims against Defendant Cathey are

dismissed.

D. Failure to Investigate

The Plaintiff claims that Defendant Rogers failed to conduct an

investigation that was ordered by a “Judge Williams.”6 [Doc. 18 at 15]. The

Plaintiff had no constitutional right to an investigation, and therefore,

Defendant Rogers’ alleged failure to conduct an investigation fails to state 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); Savage v. County of

Stafford, Va., 754 F.Supp.2d 809 (E.D. Va. 2010) (deputy sheriff’s alleged

failure to document and investigate arrestee’s alibi did not violate due

process). Accordingly, this claim is dismissed.

6 The Plaintiff does not identify the court or case number, or describe the issues that were

supposed to be investigated.

E. Excessive Force and Sexual Contact

The Plaintiff claims that Defendants Martin, Hodgens, and Grooms

physically assaulted him [Doc. 18 at 12]; that Defendant Pursor groped his

penis [id. at 15]; and that Defendant Kiker threatened, pushed, and shoved

him [id. at 12].

The Fourteenth Amendment “protects a pretrial detainee from the use

of excessive force that amounts to punishment.” Graham v. Connor, 490

U.S. 386, 395 n.10 (1989). To state an excessive force claim, a pretrial

detainee must show only that the force “purposely or knowingly used against

him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389,

397 (2015). The standard for assessing a pretrial detainee’s excessive force

claim is “solely an objective one.” Id. In determining whether the force was

objectively unreasonable, a court considers the evidence “from the

perspective of a reasonable officer on the scene, including what the officer

knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham,

490 U.S. at 396). “Included within this protection is a pre-trial detainee’s

liberty interest to be free from unwanted sexual contact by prison officials.”

Rush v. Bryant, 2021 WL 1608345, at *3 (S.D.W. Va. Feb. 22, 2021); see

Young v. Muncy, 2020 WL 1521799, at *4 (S.D.W. Va. March 30, 2020)

(“Sexual assault is not a legitimate part of a prisoner’s punishment,

particularly … where Plaintiff is a pretrial detainee….”).

Taking the Plaintiff’s allegations as true for the purposes of initial

review and drawing all reasonable inferences in his favor, the Plaintiff’s

claims against Defendants Martin, Hodgens, Grooms, Pursor, and Kiker for

excessive force and sexual contact are sufficient to pass initial review and

require a response from the Defendants.

F. Conditions of Confinement

The Plaintiff claims that he was subjected to inhumane conditions of

confinement. Specifically, he alleges that Nurse Pam LNU ordered

Defendants Rucker and Pursor to take the Plaintiff from medical to a remote

“drunk tank” cell for “torture” twice, where there was “no toilet, no running

water, no natural light, no windows in cell and door blacked out,” the

Plaintiff’s “clothes torn off of [him]…,” “no shower curtain,” “no recreation,

showers (whenever),” and that this happened in Defendant Grooms’

presence [Doc. 18 at 11, 13, 15]; that Defendant Philmore permitted the

foregoing and “add[ed] unfounded long term segregation incidents;” [id. at

11]; and that Defendant Rogers “ordered … segregations longated [sic]

escalated” [id. at 10]. He claims that the foregoing resulted in “psychological

mental anguish….” [Id. at 11].

The Eighth Amendment protects prisoners from inhumane methods of

punishment and from inhumane conditions of confinement.7 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). Rather, extreme deprivations are required, and “only

those deprivations denying the minimal civilized measure of life’s necessities

are sufficiently grave to form the basis of an Eighth Amendment violation.”

Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Wilson v. Seiter, 501 U.S.

294, 298 (1991) (internal quotation omitted)). Further, a plaintiff must allege

and prove facts sufficient to support a claim that prison officials knew of and

disregarded a substantial risk of serious harm. See Farmer v. Brennan, 511

U.S. 825, 847 (1994).

7 Because the Plaintiff was a pre-trial detainee at the relevant times, his deliberate

indifference claims are properly brought under the Fourteenth Amendment’s Due Process

Clause rather than the Eighth Amendment. See City of Revere v. Mass. Gen. Hosp., 463

U.S. 239 (1983). However, the Fourth Circuit has long applied the Eighth Amendment

deliberate indifference standard to pretrial detainees’ deliberate indifference claims. See

Moss v. Harwood, 19 F.4th 614, 624 n.4 (4th Cir. 2021) (noting that, “under Kingsley v.

Hendrickson, 576 U.S. 389, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015), pretrial detainees

bringing excessive force claims under the Fourteenth Amendment are no longer required

to satisfy the analogous subjective component that governs the Eighth Amendment

excessive force claims of convicted prisoners ... [however] the Supreme Court has not

extended Kingsley beyond the excessive force context to deliberate indifference claims,

... and neither has our court....”); Mays v. Sprinkle, 992 F.3d 295, 300-02 (4th Cir. 2021)

(declining to decide whether a pretrial detainee must satisfy the subjective component of

the Eight Amendment deliberate indifference standard).

Taking the Plaintiff’s allegations as true for the purposes of initial

review and drawing all reasonable inferences in his favor, the Plaintiff’s claim

against Defendants Pam LNU, Rucker, Pursor, Philmore, Rogers, and

Grooms for imposing unconstitutional conditions of confinement is sufficient

to pass initial review and require a response from the Defendants.

G. Deliberate Indifference to a Serious Medical Need

The Plaintiff claims that Nurse Pam LNU “[r]efus[ed] to provide

medicine…, [sought] non-treatment to Plaintiff refusing to provide wheelchair

access by health care provider, … remov[ed] double mattress orders for

antagonistic purposes to enhance agony pain suffering mental anguish” [id.

at 13]; and that Nurse FNU Speers “[a]t all times relevant refused treatment

medicines – failed to provide health care provider accurate sick call [and]

[m]ental health requests” [id.].

Claims under 42 U.S.C. § 1983 based on an alleged lack of or

inappropriate medical treatment fall within the Eighth Amendment’s

prohibition against cruel and unusual punishment.8 Estelle v. Gamble, 429

U.S. 97, 104 (1976). To state a claim under the Eighth Amendment, a

plaintiff must show a “deliberate indifference to serious medical needs” of the

inmate. Id. “Deliberate indifference requires a showing that the defendants

8 See note 7, supra.

actually knew of and disregarded a substantial risk of serious injury to the

detainee or that they actually knew of and ignored a detainee’s serious need

for medical care.” Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th Cir.

2001) (citations omitted). “To establish that a health care provider’s actions

constitute deliberate indifference to a serious medical need, the treatment

must be so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn,

896 F.2d 848, 851 (4th Cir. 1990).

Taking the Plaintiff’s allegations as true for the purposes of initial

review and drawing all reasonable inferences in his favor, the Plaintiff’s

claims against Defendants Pam LNU and FNU Speers for deliberate

indifference to a serious medical need are sufficient to pass initial review and

require a response from the Defendants.

H. Retaliation

The Plaintiff claims that Defendant Rogers “ordered retaliations” after

Judge Williams ordered Rogers to “investigate and cure…” [Doc. 18 at 10];

and that Defendant Grooms “invoked” Defendants Martin and Hodgens to

use excessive force against the Plaintiff in retaliation for having filed a

grievance against her [id. at 12].

The First Amendment right to free speech “includes not only the

affirmative right to speak, but also the right to be free from retaliation by a

public official for exercising that right.” Suarez Corp. v. McGraw, 202 F.3d

676, 685 (4th Cir. 2000). Prison officials may not retaliate against an inmate

for exercising a constitutional right. See Hudspeth v. Figgins, 584 F.2d 1345,

1347 (4th Cir. 1978). In order to state a colorable retaliation claim under §

1983, a plaintiff must allege: “(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) (citing Martin v. Duffy, 858 F.3d 239, 249 (4th Cir.

2017); quoting Constantine v. Rectors & Visitors of George Mason Univ., 411

F.3d 474, 499 (4th Cir. 2005)). Bare or conclusory assertions of retaliation

are insufficient to establish a retaliation claim. Adams, 40 F.3d at 74. In the

prison context, retaliation claims are treated with skepticism because “[e]very

act of discipline by prison officials is by definition ‘retaliatory’ in the sense

that it responds directly to prisoner misconduct.” Id.

Taking the Plaintiff’s allegations as true for the purposes of initial

review and drawing all reasonable inferences in his favor, the Plaintiff’s

claims against Defendants Rogers and Grooms regarding retaliation are

sufficient to pass initial review and require a response from the Defendants.

I. 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 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). Without a viable § 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).

First, the Plaintiff refers to his pretrial detention, and sections of the

North Carolina General Statutes addressing: habeas corpus;9 preliminary

proceedings in a criminal case;10 and the Uniform Criminal Extradition Act.11

[Doc. 18 at 5, 14]. By citing the foregoing, it appears that the Plaintiff is

asking the Court to insert itself into his pending criminal proceedings, and/or

seeking to challenge the fact or duration of his present confinement. The

Court has previously informed the Plaintiff in another civil rights case, No.

3:21-cv-00667-MR, that he may not challenge the conditions of his

confinement and the fact or duration of his present detention in the same

action. [See Civil Case No. 3:21-cv-667, Docs. 21, 23, 33]. Moreover, the

Supreme Court held in Younger v. Harris, 401 U.S. 37 (1971), that a federal

court should not interfere with state criminal proceedings except in the most

narrow and extraordinary of circumstances. Id. at 43-44. Under the

abstention doctrine, abstention is proper in federal court when (1) there is an

ongoing state court proceeding; (2) the proceeding implicates important state

9 N.C.G.S. Chapter 17.

10 N.C.G.S. §§ 15A-601 through -603, which address first appearance, warning of right

against self-incrimination, and assuring a defendant’s right to counsel, respectively.

11 N.C.G.S. §§ 15A-721 through -760.

interests; and (3) the petitioner has an adequate opportunity to present the

federal claims in the state proceeding. Emp’rs Res. Mgmt. Co. v. Shannon,

65 F.3d 1126, 1134 (4th Cir. 1995). Here, the Petitioner has not shown that

his case presents those “most narrow and extraordinary of circumstances”

that would qualify as an exception to Younger abstention and necessitate

federal intervention. See Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996).

The Court would, therefore, abstain from addressing the Plaintiff’s claims

while state court criminal charges are pending against him in any event.

Construing the Amended Complaint liberally, the Plaintiff also appears

to assert assault and battery claims against Defendants Martin, Hodgens,

Grooms, Pursor, and Kiker.12 [Doc. 18 at 10, 12].

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.

12 The Plaintiff refers only to “assault” but the allegations are liberally construed to include

claims of assault and battery under North Carolina law.

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 and sexual act claims have

passed initial review against Defendants Martin, Hodgens, Grooms, Pursor,

and Kiker, and the Plaintiff appears to assert assault and battery claims

against them for the same incidents. 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.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that the Plaintiff’s

claims have passed initial review against Defendants Martin, Hodgens,

Grooms, Pursor, and Kiker for excessive force and sexual contact; against

Defendants Pam LNU, Rucker, Pursor, Philmore, Rogers, and Grooms for

imposing unconstitutional conditions of confinement; Defendants Pam LNU

and Speers for deliberate indifference to a serious medical need; and against

Defendants Rogers and Grooms for retaliation. The Court will exercise

supplemental jurisdiction over the Plaintiff’s North Carolina assault and

battery claims against Defendants Martin, Hodgens, Grooms, Pursor, and

Kiker. The remaining claims fail initial review and are dismissed.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The Plaintiff’s claims have passed initial review against Defendants

Martin, Hodgens, Grooms, Pursor, and Kiker for excessive force

and sexual contact; against Defendants Pam LNU, Rucker, Pursor,

Philmore, Rogers, and Grooms for imposing unconstitutional

conditions of confinement; against Defendants Pam LNU and

Speers for deliberate indifference to a serious medical need; and

against Defendants Rogers and Grooms for retaliation.

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

North Carolina assault and battery claims against Defendants

Martin, Hodgens, Grooms, Pursor, and Kiker.

3. The Plaintiff’s remaining claims are DISMISSED as stated in this

Order.

4. The Clerk of Court is respectfully instructed to mail 10 blank

summonses to Plaintiff to fill out for service of process on

Defendants Grooms, Hodgens, Kiker, Martin, Pam LNU, Philmore,

Pursor, Rogers, Rucker, and Speers, and then return the

summonses to the Court. The Plaintiff is required to provide the

necessary information for the U.S. Marshal to effectuate service on

Defendants. As the Court receives the summonses from Plaintiff,

the Clerk shall direct the U.S. Marshal to effectuate service upon

Defendants

5. The Clerk is respectfully instructed to terminate Eddie Cathey, John-

Jane Doe, Bill Beam, Kevin Tolson, Mike Miller, and Lori Fields as

Defendants in this matter.

IT IS SO ORDERED.

Signed: June 22, 2022

Martifi Reidinger ey

Chief United States District Judge AS

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