Dade v. Church

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:22-cv-00081-MR

DEESHUN DADE, )

)

Plaintiff, )

)

vs. )

)

FNU CHURCH, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on initial review of the pro se

Second Amended Complaint. [Doc. 16]. The Plaintiff is proceeding in forma

pauperis. [Doc. 11].

I. BACKGROUND

The pro se Plaintiff filed this action pursuant to 42 U.S.C. § 1983

addressing an incident that allegedly occurred at the Foothills Correctional

Institution, where he is presently incarcerated. [Doc. 1]. The Plaintiff filed

an Amended Complaint [Doc. 5] before the original Complaint was screened

for frivolity; he then filed a Notice and Motion to Join Party [Doc. 9]. On

August 16, 2022, the Court issued an Order denying the Notice and Motion

to Join because it was a piecemeal attempt to amend, and granted the

Plaintiff 30 days to file a superseding Second Amended Complaint.1 [Doc.

15]. The Second Amended Complaint is now before the Court for initial

review. [Doc. 16].

The Plaintiff names as the sole Defendant FNU Jones, a correctional

officer, for violating his First and Eighth Amendment rights. [Doc. 16 at 3].

The Plaintiff alleges as follows:

On 4/5/2022 Plaintiff Deeshun Dade got into a physical

altercation with multiple prison guards. At that time in which he

was tazed twice & assaulted. Defendant Jones then proceeded

to pull the Plaintiff’s hair, which in the process resulted in a loss

of hair which at the time went against the Plaintiff’s religion which

at the time was Rastafarian.

[Id. at 5].

As injury the Plaintiff claims that he “lost a significant amount of hair …

[and] also resulted in the Plaintiff to cut down his locks which goes against

(or) went against his religion.” [Id.]. He seeks compensatory, nominal, and

punitive damages. [Id.].

II. STANDARD OF REVIEW

Because the Plaintiff is proceeding in forma pauperis, the Court must

review the Second Amended Complaint to determine whether it is subject to

dismissal on the grounds that it is “frivolous or malicious [or] fails to state a

1 Also on August 16, 2022, the Court dismissed a duplicative action, Case No. 1:22-cv-

130-MR, that addressed the same incident as the instant case.

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. 28 U.S.C. §

1915A.

In its frivolity review, this Court must determine whether 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).

A. Parties

The body of the Second Amended Complaint refers to individuals other

than Defendant Jones. See Fed. R. Civ. P. 10(a) (requiring defendants to

be named in the caption); 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 allegations directed at non-

parties are dismissed.2

The Plaintiff asserts individual and official capacity claims against

Defendant Jones. “[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, the Eleventh Amendment bars suits for monetary damages

2 The allegations that the Plaintiff was “tazed” and “assaulted” by “multiple prison guards”

are also too vague and conclusory to satisfy the most basic pleading requirements. [Doc.

16 at 5]; see Fed. R. Civ. P. 8(a)(2) (requiring a “short and plain statement of the claim

showing that the pleader is entitled to relief”); Simpson v. Welch, 900 F.2d 33, 35 (4th Cir.

1990) (conclusory allegations, unsupported by specific allegations of material fact are not

sufficient); 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).

against the State of North Carolina and its various agencies. See Ballenger

v. Owens, 352 F. 3d 842, 844-45 (4th Cir. 2003). The Plaintiff’s official

capacity claims, therefore, do not survive initial review and will be dismissed.

B. Excessive Force

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.

The Plaintiff’s allegation that Defendant Jones “pulled [his] hair” during

a “physical altercation with multiple prison guards” fails to state a plausible

claim for the use of excessive force. [Doc. 16 at 5]. Assuming arguendo that

the force was objectively serious enough, this claim is insufficient to proceed.

The Plaintiff has not alleged sufficient facts to plausibly allege that Officer

Jones had a sufficiently culpable state of mind by pulling the Plaintiff’s hair

during Plaintiff’s physical altercation with multiple officers. Accordingly, this

claim is dismissed without prejudice.

C. Religious Exercise

To state a free exercise claim under the First Amendment, a plaintiff

must allege facts sufficient to show that he held a sincere religious belief and

that the official action or regulation substantially burdened his exercise of

that belief. See generally Hernandez v. C.I.R., 490 U.S. 680, 699 (1989). A

“substantial burden” is one that puts “substantial pressure on an adherent to

modify his behavior and violate his beliefs.” Thomas v. Review Bd. of Ind.

Employment Sec. Div., 450 U.S. 707, 718 (1981). A prison policy that

substantially burdens an inmate’s ability to practice his religion withstands a

First Amendment challenge when it is “reasonably related to legitimate

penological interests.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349

(1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). However,

“negligent acts by officials causing unintended denials of religious rights do

not violate the Free Exercise Clause.” Lovelace v. Lee, 472 F.3d 174, 196

(4th Cir. 2006).

Assuming that the Plaintiff had a sincerely held Rastafarian belief with

regards to his hair, he has failed to plausibly allege that Defendant Jones

knew that pulling his hair would substantially burden that right, or that Jones’

actions were anything more than negligent. Therefore, the Plaintiff’s First

Amendment claim is dismissed without prejudice.

IV. CONCLUSION

In sum, the Second Amended Complaint is dismissed without prejudice

except for the official-capacity claims for damages, which are dismissed with

prejudice.

The Court will allow the Plaintiff thirty (30) days to amend his

Complaint, if he so chooses, to correct the deficiencies identified in this Order

and to otherwise properly state a claim upon which relief can be granted.

Any Third Amended Complaint will be subject to all timeliness and procedural

requirements and will supersede his previous filings. Piecemeal amendment

will not be allowed. Should the Plaintiff fail to timely file a Third Amended

Complaint in accordance with this Order, this action will be dismissed without

prejudice and without further notice to Plaintiff.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The official-capacity claims for damages are DISMISSED WITH

PREJUDICE.

2. The remaining claims are DISMISSED WITHOUT PREJUDICE

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(il).

3. The Plaintiff shall have thirty (30) days in which to amend his

Complaint in accordance with the terms of this Order. If Plaintiff fails

to file a Third Amended Complaint in accordance with this Order

and within the time limit set by the Court, this action will be

dismissed without prejudice and without further notice to Plaintiff.

The Clerk of Court is respectfully instructed to mail the Plaintiff a blank

§ 1983 prisoner complaint form and a copy of this Order.

IT 1S SO ORDERED. Signed: September 28, 2022

Martifi Reidinger ee

Chief United States District Judge AS