# Pitt v. Fishbach

> District Court, W.D. North Carolina · July 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10258617

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** July 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:22-cv-00108-MR

CALEB MICHAEL PITT, )
)
Plaintiff, )
)
vs. ) ORDER
)
)
FNU FISHBACH, et al., )
)
Defendants. )
________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s
Complaint [Doc. 1] filed under 42 U.S.C. § 1983. See 28 U.S.C. §§
1915(e)(2) and 1915A. Plaintiff is proceeding in forma pauperis. [Docs. 2,
7].
I. BACKGROUND
Pro se Plaintiff Caleb Michael Pitt (“Plaintiff”) is a prisoner of the State
of North Carolina currently incarcerated at Alexander Correctional Institution
in Taylorsville, North Carolina. He filed this action on May 27, 2022, pursuant
to 42 U.S.C. § 1983 based on events allegedly occurring while he was
detained at the Buncombe County Detention Facility (“BCDF”) in Asheville,
North Carolina. [Doc. 1]. Plaintiff alleges that from April 1, 2020 to December
7, 2021 he was housed at BCDF inmate booking on level one suicide watch
“because [he] popped two sprinklers and [his] original charge of assault with
a deadly weapon.” [Id. at 4]. Plaintiff alleges that Defendants Fishbach and

Rayes, both identified as Lieutenants at BCDF, were responsible for this
decision. [Id. at 5]. Plaintiff alleges that Defendants advised him that “your
housing is for safety and security of you and the facility.” [Id. at 4]. While on

level one suicide watch, Plaintiff had no mat and no property and he “was
not allowed to contact the courts.” Plaintiff alleges that he told his mother,
sister and his attorneys, Joseph Bowman and Ted Besen, regarding his
housing status. [Id. at 5]. Plaintiff alleges that he suffered only mental injury

for which he received “bare minimum” treatment. [Id.]. Plaintiff claims his
rights under the First and Eighth Amendment were violated and sues
Defendants in their official capacities only. [Id. at 3]. For relief, Plaintiff seeks

monetary and injunctive relief. [Id. at 5].
II. STANDARD OF REVIEW
Because 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 “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.

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
“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 claims his rights under the First and Eighth Amendments were

violated by the alleged conduct.
A. Official Capacity
Suits against an officer in his official capacity “generally represent only

another way of pleading an action against an entity of which an officer is an
agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099 (1985)
(1985) (quoting Monell v Dep’t of Soc. Servs. of the City of New York, 436

U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 (1978)). The Office of Sheriff is
not liable under § 1983 for an employee’s acts “unless action pursuant to
official municipal policy of some nature caused [the] constitutional tort.”
Collins v. City of Harker Heights, 503 U.S. 115, 120-21, 112 S.Ct. 1061,

1066 (quoting Monell, 436 U.S. at 691, 98 S.Ct. at 2036). That is, “[f]or a
governmental entity to be liable under section 1983, the official policy must
be the moving force of the constitutional violation.” Moore v. City of

Creedmoor, 345 N.C. 356, 366, 481 S.E.2d 14, 21 (1997) (internal quotation
marks and citations omitted). “Thus, the entity’s ‘policy or custom’ must have
played a part in the violation of federal law.” Id. (quoting Monell, 436 U.S.
658, 694, 98 S.Ct. at 2037-38).

Plaintiff purports to sue Defendants, who are employees of the
Buncombe County Sheriff’s Office, in their official capacities only. Plaintiff,
however, fails to allege that any official policy was the moving force behind

or otherwise played a part in any constitutional violation. Plaintiff, therefore,
has failed to state a claim against Defendants in the first instance and these
Defendants will be dismissed.

B. Access to the Courts
Even if Plaintiff had named Defendants in their individual capacities,
he has otherwise failed to state a claim for relief. As to Plaintiff’s First

Amendment claim, prisoners must have meaningful access to the courts.
Bounds v. Smith, 430 U.S. 817 (1977). The “meaningful access” referred to
in Bounds does not, however, entitle a plaintiff to total or unlimited access.
See Moore v. Gray, No. 5:04-CT-918-FL, 2005 WL 3448047, at *1 (E.D.N.C.

Jan. 26, 2005), aff’d, 133 Fed. App’x 913 (4th Cir. 2005) (unpublished)
(citation omitted). The right of access to the courts only requires that
prisoners have the capability of bringing challenges to sentences or

conditions of confinement. See Lewis v. Casey, 518 U.S. 343, 356-57
(1996). Moreover, as a jurisdictional requirement flowing from the standing
doctrine, the prisoner must allege an actual injury. See id. at 349. “Actual
injury” is prejudice with respect to contemplated or existing litigation, such as

the inability to meet a filing deadline or present a non-frivolous claim. See
id. A plaintiff’s “[f]ailure to show that a ‘nonfrivolous legal claim has been
frustrated’ is fatal to his Bounds claim.” Alvarez v. Hill, 518 F.3d 1152, 1155

n.1 (9th Cir. 2008) (quoting Casey, 518 U.S. at 353).
Here, Plaintiff alleges only that he was not allowed to contact the
courts. He does not allege that he suffered any injury from any lack of access

to the courts and affirmatively alleges that he was able to contact his
attorneys. The attorneys’ contact with the courts was in no way inhibited. As
such, Plaintiff has failed to state a claim for relief under the First Amendment

and it will be dismissed.
C. Cruel and Unusual Punishment
Plaintiff claims he was subjected to “cruel and unusual punishment” in
violation of the Eighth Amendment for Defendants’ decision to house him in

BCDF inmate booking on suicide watch for approximately 17 months.1 [See
Doc. 1 at 4-5]. Because Plaintiff was a pretrial detainee and not a convicted
prisoner at the time of the alleged denial, this claim is governed by the Due

Process Clause of the Fourteenth Amendment rather than by the Eighth
Amendment’s prohibition against cruel and unusual punishment. See Martin
v. Gentile, 849 F.2d 863, 870 (4th Cir. 1998) (citations omitted). “The due
process rights of a pretrial detainee are at least as great as the eighth

amendment protections available to the convicted prisoner; while the
convicted prisoner is entitled to protection only against punishment that is

1 In one part of the Complaint, Plaintiff alleged he was housed in inmate booking for 14,
not 17, months. [See Doc. 1 at 5]. The result is the same either way.
‘cruel and unusual,’ the pretrial detainee, who has yet to be adjudicated guilty
of any crime, may not be subjected to any form of ‘punishment.’” Id. (citing

City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct.
2979, 2983 (1983)). “But not every inconvenience encountered during
pretrial detention amounts to ‘punishment’ in the constitutional sense.” Id.

(citation omitted). To establish that a particular condition or restriction of his
confinement is unconstitutional punishment, a pretrial detainee “must show
either that it was (1) imposed with an expressed intent to punish or (2) not
reasonably related to a legitimate nonpunitive governmental objective, in

which case an intent to punish may be inferred.” Id. (citation omitted).
Taking Plaintiff’s allegations as true and giving Plaintiff the benefit of
every reasonable inference, Plaintiff has failed to state a claim for relief under

the Fourteenth Amendment. Plaintiff’s allegations evince no intent to punish
Plaintiff and demonstrate that Plaintiff’s housing location was reasonably
related to a legitimate nonpunitive governmental objective, that is, the
security and safety of the Plaintiff and the facility. The Court, therefore, will

dismiss this claim.
D. Injunctive Relief
For relief, Plaintiff states he “want[s] this cruel and unusual punishment

to end” at BCDF. [Doc. 1 at 5]. Plaintiff, however, has been transferred from
BCDF to Alexander Correctional Institution. Thus, Plaintiff’s claim for
injunctive relief is moot and will be dismissed. Incumaa v. Ozmint, 507 F.3d

281, 286-87 (4th Cir. 2007).
Plaintiff, therefore, has no remaining claims or Defendants before the
Court. The Court, however, will allow Plaintiff to amend his Complaint if he

so chooses, to properly state a claim upon which relief can be granted. Any
amended complaint will be subject to all timeliness and procedural
requirements and will supersede the Complaint. Finally, piecemeal
amendment will not be permitted.

IV. CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiff’s
Complaint fails initial review for Plaintiff’s failure to state any claim for relief.

See 28 U.S.C. §§ 1915(e)(2) and 1915A. The Court will allow Plaintiff thirty
(30) days to amend his Complaint, if he so chooses, to properly state a claim
upon which relief can be granted in accordance with the terms of this Order.
ORDER

IT IS, THEREFORE, ORDERED that Plaintiff shall have thirty (30)
days in which to amend his Complaint in accordance with the terms of this
Order. If Plaintiff fails to so amend his Complaint, the matter will be

dismissed without prejudice and without further notice to Plaintiff.
IT IS FURTHER ORDERED that Defendants Fishbach and Rayes are
DISMISSED as Defendants in this matter.
The Clerk is respectfully instructed to mail Plaintiff a blank prisoner §
1983 form.
IT IS SO ORDERED.

Signed: July 15, 2022

5 a wail
< Reidinger ey
Chief United States District Judge “AES

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10258617. Public record. Not legal advice.