# Dade v. Carlineo

> District Court, W.D. North Carolina · July 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10258672

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** July 29, 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-00125-MR

DEESHUN DADE, )
)
Plaintiff, )
)
vs. )
)
) ORDER
)
FNU CARLINEO, )
)
Defendant. )
___________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s
Complaint, filed under 42 U.S.C. § 1983. [Doc. 1; See Doc. 1-3].1 See 28
U.S.C. §§ 1915(e)(2); 1915A. Plaintiff is proceeding in forma pauperis.
[Docs. 2, 8].
I. BACKGROUND
Pro se Plaintiff Deeshun Dade (“Plaintiff”) is a prisoner of the State of
North Carolina currently incarcerated at Foothills Correctional Institution
(“Foothills”) in Morganton, North Carolina. On June 21, 2022, Plaintiff filed
this action pursuant to 42 U.S.C. § 1983 against Defendant FNU Carlineo,

1 Plaintiff filed two nearly identical Complaints that were both dated June 13, 2022, [Docs.
1 at 5, Doc. 1-3 at 5], and received by this Court on June 21, 2022, [Doc. 1-1 at 1, Doc.
1-4 at 1]. The second of these two Complaints was filed at Docket No. 1-3 in this matter.
identified as a correctional officer at Foothills, in his individual and official
capacities. [Doc. 1]. Plaintiff alleges as follows. On May 13, 2022, while

Defendant was escorting Plaintiff to the shower, Defendant pulled and
squeezed Plaintiff’s arm. [Id. at 2]. Plaintiff’s arms were handcuffed behind
his back. [See id. at 3]. Plaintiff and Defendant had a verbal exchange of

profanity after which Plaintiff attempted to walk toward the shower area.
Defendant then “appl[ied] force to stop the plaintiff from walking” and “forced
the plaintiff against the metal bars & rammed the plaintiff’s head against
them.” [Id. at 2]. Defendant and Plaintiff walked toward a staircase where

Defendant tightened the handcuffs “as much as possible” to harm Plaintiff.
While walking up the stairs Defendant tried to push Plaintiff up the stairs.
Once at the top of the stairs, Plaintiff began to resist out of fear of being

assaulted again. Defendant pinned Plaintiff against the wall. [Id.]. After
reaching Plaintiff’s cell, Defendant pushed Plaintiff inside and then, after
Plaintiff jumped on his bed and stood in the corner, Defendant rammed
Plaintiff against the wall. Once free from Defendant and apparently as

Defendant was leaving Plaintiff’s cell, Plaintiff tried to step through his
handcuffed arms to bring them to the front of his body. Defendant noticed
what Plaintiff was doing and rushed back into the cell and wrestled with

Plaintiff. Plaintiff ended up in the fetal position on the floor where Defendant
“mush[ed] & punch[ed]” him. [Id. at 3]. Sergeant Adkins arrived and ordered
Defendant to release Plaintiff several times before Defendant complied. [Id.].

Plaintiff claims that this conduct constituted a failure to protect him from
harassment and assault, which constitutes cruel and unusual punishment
under the Eighth Amendment. [Doc. 1 at 4].

For relief, Plaintiff seeks declaratory relief and compensatory, punitive,
and nominal damages. [Id.]. Plaintiff also moves for a “preliminary &
permanent injunction in the interest of justice, ordering [he] be moved to
Central Prison for his protection until the disposition of the case” and such

“temporary relief … until such time when he can exhaust administrative
remedy procedure.” [Id.].
II. STANDARD OF REVIEW

The Court must review Plaintiff’s 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, § 1915A requires an initial review of a “complaint in a civil

action in which a prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity,” and the court must identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the

complaint 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
from 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. Official Capacity
“[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.
Michigan Dept. 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, as noted

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). Plaintiff’s official capacity claim, therefore,

does not survive initial review and will be dismissed.
B. Eighth Amendment
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). Although
Plaintiff purports to state a claim for the failure to protect, Plaintiff’s claim is

properly considered as an excessive force claim under the 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,
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 Plaintiff’s allegations as true for the purposes of this initial

review and drawing all reasonable inferences in his favor, Plaintiff sufficiently
describes an Eighth Amendment excessive force claim against Defendant in
his individual capacity to allow the case to proceed.
C. Motion for Preliminary Injunction

Plaintiff seeks a preliminary and permanent injunction ordering that he
be transferred to Central Prison “for his protection” until the disposition of this
case. [Doc. 1 at 4]. Plaintiff argues that he “has been & will continue to be

irreparably injured by the conduct of the defendant” unless the Court grants
the relief sought. [Id.].
Preliminary injunctive relief is an extraordinary remedy afforded before
trial at the discretion of the district court. In re Microsoft Corp. Antitrust Litig.,

333 F.3d 517, 524-26 (4th Cir. 2003). It is an extraordinary remedy never
awarded as of right. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,
24 (2008). In each case, courts “must balance the competing claims of injury

and must consider the effect on each party of the granting or withholding of
the requested relief.” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531,
542 (1987). To obtain a preliminary injunction, the plaintiff must establish (1)

that he is likely to succeed on the merits; (2) that he is likely to suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of
equities tips in his favor; and (4) that an injunction is in the public interest.

Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346
(4th Cir. 2009).
Plaintiff’s motion for preliminary injunctive relief fails. It is outside the
Court’s authority to order that Plaintiff be transferred to a different state

correctional institution in the first place. Moreover, even if the Court had
authority to order the requested relief, Plaintiff has not shown that he is
entitled thereto in any event. Plaintiff has failed to establish any one of the

four elements the Court considers in granting injunctive relief. See Real Truth
About Obama, 575 F.3d at 346. The Court will, therefore, deny Plaintiff’s
request for injunctive relief.
Plaintiff also seeks a “temporary relief order” allowing him time to

comply with 42 U.S.C. § 1997e(a)’s administrative remedy exhaustion
requirement. Plaintiff alleges that he submitted a grievance form before filing
his Complaint, but that it was thrown away. [Doc. 1 at 4]. The Court will

deny this request as moot. Plaintiff need only exhaust those administrative
remedies actually available to him before filing suit. Moss v. Harwood, 19
F.4th 614, 621 (4th Cir. 2021) (“An inmate need exhaust only ‘available’

administrative remedies.”) (quoting § 1997e(a)). “[A]n administrative remedy
is not considered to have been available if a prisoner, through no fault of his
own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d

717, 725 (4th Cir. 2008). As such, Plaintiff will not be penalized if he did, in
fact, submit a grievance regarding the incident and it was not processed, but
rather discarded by prison officials.
IV. CONCLUSION

In sum, Plaintiff’s Eighth Amendment excessive force claim against
Defendant in his individual capacity survives initial review. Plaintiff’s claim
against Defendant in his official capacity does not and will be dismissed.

Plaintiff’s motion for a preliminary injunction will be denied.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff’s Eighth Amendment
excessive force claim against Defendant in his individual capacity passes

initial review.
IT IS FURTHER ORDERED that Plaintiff’s Eighth Amendment
excessive force claim against Defendant in his official capacity is hereby
DISMISSED and Plaintiffs motion for preliminary injunction [Doc. 1] is
DENIED.
IT 1S, THEREFORE, ORDERED that Clerk of Court shall commence
the procedure for waiver of service as set forth in Local Civil Rule 4.3 for
Defendant, who is alleged to be a current or former employee of the North
Carolina Department of Public Safety.
The Clerk is also instructed to mail Plaintiff an Opt-In/Opt-Out form
pursuant to Standing Order 3:19-mc-00060-FDW.
IT IS SO ORDERED.

Signed: July 29, 2022

Martifi Reidinger ey
Chief United States District Judge AS

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10258672. Public record. Not legal advice.