Brown v. Thomas

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:22-cv-00028-MR

DASHAWN TYREK BROWN, )

)

Plaintiff, )

)

vs. )

)

FNU THOMAS, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

Amended Complaint. [Doc. 10]. The Plaintiff is proceeding in forma

pauperis. [Doc. 6].

I. BACKGROUND

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

§ 1983 addressing incidents that allegedly occurred at the Alexander

Correctional Institution. [Doc. 1]. The Complaint was dismissed on initial

review, and the Plaintiff was given the opportunity to amend. [Doc. 8]. The

Amended Complaint is now before the Court for initial review. [Doc. 10].

The Plaintiff names as Defendants in their individual and official

capacities: William Thomas, Bruce McNemar, and John Doe,1 who are

correctional officers at Alexander CI; and FNU Huneycutt, the Alexander CI

superintendent/warden. The Plaintiff asserts claims of “1st Amendment –

retaliation, 8th Amendment – cruel and unusual punishment.”2 [Doc. 10 at 3].

As injury he claims that he “developed a severe cough and cold, weight loss,

severe rashes on arm, back, legs that lasted for 2 or 3 weeks,” he suffered

emotional distress and “feared retaliation,” and his depression medication

was increased. [Id. at 5]. He seeks damages and a temporary restraining

order. [Id.; Doc. 10-1 at 1].

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 “(i) frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks monetary relief against

1 “FNU LNU” in the Amended Complaint. [Doc. 10 at 3].

2 The Plaintiff alludes to “other claims not mentioned were expressed in the letter/petition”

of “[d]eliberate indifference, substantial risk of serious harm from a deadly airborne

disease and additional cruel and unusual punishment.” [Doc. 10 at 12]. However, he

was cautioned that he “must include all of his allegations in the Amended Complaint so

that the Court can identify the claims he is attempting to raise.” [Doc. 8 at 3, n.1]. His

vague reference to claims that are not included in the Amended Complaint is insufficient

to present those claims to the Court, and will be disregarded.

a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see

28 U.S.C. § 1915A (requiring frivolity review for prisoners’ civil actions

seeking redress from governmental entities, officers, or employees).

In its frivolity review, a 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).

The Amended Complaint contains allegations against individuals who

are not named as Defendants. These claims are dismissed for the reasons

discussed in the Order on initial review of the Complaint. [Doc. 8 at 3].

The Plaintiff names a John Doe correctional officer as a Defendant, but

he makes no allegations against that individual. 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). Therefore, the claims against the John Doe

correctional officer are dismissed without prejudice.

The Plaintiff again purports to sue the Defendants in their official and

individual capacities. The official capacity claims were previously dismissed

with prejudice, and they have been improperly reasserted. [Doc. 8 at 4].

They are dismissed with prejudice for the reasons discussed in the Order on

initial review of the Complaint. [Id.].

The Plaintiff claims that: Defendants Thomas and McNemar “got mad”

when he called them “lazy” and threatened to sue them during a cell transfer

[Doc. 10 at 12]; Thomas and McNemar packed the Plaintiff’s property

because of his “smart mouth,” and the Plaintiff asked them to make sure he

receives his personal property, blanket, sheets, and clothing [id.]; the Plaintiff

received his property several hours later, with no blanket, sheets, or clothing

[id.]; the Plaintiff finally received a bedroll five days later from another officer

[id.]; Defendant Thomas retaliated against the Plaintiff for filing the instant

lawsuit by writing him up for a disciplinary infraction [Doc. 10-1 at 2]; and

Defendant Huneycutt “was notified of all claims and other problems with no

positive result” [Doc. 10 at 8]. Taking the Plaintiff’s allegations as true for the

purposes of this initial review and drawing all reasonable inferences in his

favor, he has stated a retaliation claim against Defendants Thomas and

McNemar.

However, the Plaintiff has failed to state a retaliation claim against

Defendant Huneycutt. 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 alleged offensive

practices;” and (3) there was an “affirmative causal link” between her inaction

and the constitutional injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.

1994) (internal quotation marks omitted). The Plaintiff’s claims that

Defendant Huneycutt was aware of “all claims,” and that the Plaintiff received

“no positive results,” are too vague and conclusory to show deliberate

indifference, tacit authorization, or an affirmative causal link. Therefore, the

supervisory retaliation claim against Defendant Huneycutt is dismissed

without prejudice.

The Plaintiff reiterates his claims that he was exposed to

unconstitutional conditions of confinement in that he was not given the

opportunity to clean his dirty cell for several hours and did not have a blanket

for five days. [Doc. 10 at 12]. As discussed the Order on initial review of the

Complaint, these conditions are not adequately severe, and the Plaintiff has

failed to plausibly allege that any Defendant was liable for violating his rights

in this regard. [Doc. 8 at 5-6]. Accordingly, these claims are dismissed

without prejudice.

Finally, the Plaintiff requests a temporary restraining order against

Defendants Thomas and McNemar because Thomas stole legal work from

his cell, and “they” will not let him out of the “hole” after completing his

disciplinary time. [Doc. 10-1 at 1].

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). “[C]ourts of equity should pay particular regard for the public

consequences in employing the extraordinary remedy of injunction.” Winter,

555 U.S. at 24. 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.

Id. at 20. The Plaintiff has not established any of the elements that would

warrant preliminary injunctive relief. Accordingly, his request for a temporary

restraining order is denied.

IV. CONCLUSION

In sum, the Plaintiff’s retaliation claims have passed initial review

against Defendants Thomas and McNemar in their individual capacities. The

claims against the Defendants in their official capacities are dismissed with

prejudice, and the individual and supervisory claims against the Defendant

John Doe correctional officer and Defendant Huneycutt are dismissed

without prejudice. The request for a temporary restraining order is denied.

In light of the Court’s determination that this case passes initial review

in accordance with this Order, the Court will order the Clerk of Court to

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

4.3 for Defendants Thomas and McNemar, who are alleged to be current or

former employees of NCDPS.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The Amended Complaint [Doc. 10] passes initial review against

Defendants Thomas and McNemar for retaliation in their individual

capacities.

2. The claims against the Defendants in their official capacities are

DISMISSED WITH PREJUDICE.

3. The claims against the Defendant John Doe correctional officer and

Defendant Huneycutt in their individual and supervisory capacities

are DISMISSED WITHOUT PREJUDICE.

4. The Plaintiff’s request for a temporary restraining order is DENIED.

5. The Clerk shall commence the procedure for waiver of service as

set forth in Local Civil Rule 4.3 for Defendants Thomas and

McNemar, who are alleged to be current or former employees of

NCDPS.

The Clerk is respectfully instructed to mail the Plaintiff an Opt-In/ Opt-

Out form pursuant to the Standing Order in Misc. Case. No. 3:19-mc-00060-

FDW and a copy of this Order.

IT IS SO ORDERED.

Signed: September 28, 2022

5 a at

£ Reidinger ey

Chief United States District Judge AES