Norman v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:22-cv-00149-MR

DASHA CLARK NORMAN, )

)

Plaintiff, )

)

vs. )

)

WAYNE BROWN, 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 Plaintiff, who is presently incarcerated at the Mountain View

Correctional Institution, filed this civil rights action pursuant to 42 U.S.C. §

1983. The Complaint asserted due process and equal protection claims

against a Transylvania County magistrate with regards to Plaintiff’s criminal

prosecution. [Doc. 1]. The Court dismissed the Complaint and granted the

Plaintiff the opportunity to amend. [Doc. 9]. The Amended Complaint is now

before the Court for initial review.

The Plaintiff names as Defendants: Shelly Stroup and Shannon Case,1

who are both correctional sergeants at the Transylvania County Detention

Center (TCDC); and Hope Hollingsworth, a TCDF kitchen officer supervisor.

[Doc. 10 at 2-3]. The Plaintiff asserts a claim for “[f]ailure to protect from

violence….”2 [Id. at 3]. As injury, he claims that: he lost consciousness; he

received a five-inch gash on the back of his head; a tooth broke through his

lip; his sight was damaged; he is still “not well”; his “attempts to change [his]

reputation were attacked”; and he “received damage mentally and

emotionally….” [Id. at 5]. He seeks 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 “(i) frivolous or malicious; (ii) fails to state

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

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).

1 Also referred to as “Capps.” [Doc. 10 at 2].

2 The Court also liberally construes the Amended Complaint to raise a retaliation claim.

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. DISCUSSION3

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 refers to individuals who were not

named as defendants in the caption as required by Rule 10(a) of the Federal

3 The Amended Complaint includes allegations that are speculative, nonsensical, or so

far afield from the topics at hand that they do not warrant separate discussion. [See, e.g.,

Doc. 10 at 12-13 (“for reasons I can only assume were due to Hope Hollingsworth’s sexual

preference and her fairness to me Sergeant Stroup placed a great deal of undue hardship

upon Hope Hollingsworth on nearly a daily basis”)].

Rules of Civil Procedure. [See, e.g., Doc. 10 at 12-13, 15 (referring to Lt.

Mcall, Janice Morgan, and Nurse Laura); see Fed. R. Civ. P. 10(a) (“The title

of the complaint must name all the parties”); 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 individuals not named as defendants are, therefore, dismissed

without prejudice.

B. Failure to Protect

The Plaintiff claims inter alia that Defendant Stroup, who is in charge

of kitchen functions, “spread rumors” and throughout the jail and made “false

accusations” that were “defamatory in the capacity of [Plaintiff’s kitchen] job,

and were dismissed after being proven false”4 [Doc. 10 at 12]; that Defendant

Case repeatedly attempted to incite violence by telling inmate Oshields and

others that Plaintiff “snitched” on Oshields and needed to be beaten, and that

Oshields violently attacked the Plaintiff [id. at 13]; that Defendant

Hollingsworth “misread” Oshields’ “prevocations [sic] and threats of violence”

as banter, failed to intervene when Oshields attacked the Plaintiff in

4 If these allegations were construed as attempting to state a retaliation claim, they are

insufficient to proceed for the reasons discussed in Section C, infra.

Hollingsworth’s presence, and failed to call a “code” for assistance until the

attack was over [id. at 15]; and that he was “badly damaged” in the attack,

requiring treatment at the hospital [id.].

The Eighth Amendment imposes on prison officials a duty to “protect

prisoners from violence at the hands of other prisoners.” Farmer v. Brennan,

511 U.S. 825, 833 (1994) (internal quotations omitted). To obtain relief under

§ 1983 on a claim of failure to protect, an inmate must show: (1) “serious or

significant physical or emotional injury” resulting from that failure; and (2) the

prison officials had a “sufficiently culpable state of mind,” which in this context

is deliberate indifference. Id. at 834. A prison official is “deliberately

indifferent to a substantial risk of harm to a [prisoner] when that [official]

‘knows and disregards’ the risk.” Parrish ex rel. Lee v. Cleveland, 372 F.3d

294, 302 (4th Cir. 2004) (quoting Farmer, 511 U.S. at 837). A showing of

negligence does not rise to the level of deliberate indifference. Davidson v.

Cannon, 474 U.S. 344, 347-48 (1986).

Taking the allegations as true for the purposes of initial review, and

construing all inferences in the Plaintiff’s favor, the Court concludes that he

has stated a claim for failure to protect against Defendants Case and

Hollingsworth. However, the allegations against Defendant Stroup are too

vague and conclusory to proceed. The Plaintiff has not alleged any facts to

plausibly suggest that the “rumors” and “false accusations” by Defendant

Stroup placed the Plaintiff at risk of serious harm, that Stroup knew of, and

was deliberately indifferent to, a substantial risk of harm to the Plaintiff, or

that he suffered a serious or significant physical or emotional injury as a

result.

Accordingly, the Plaintiff’s failure to protect claim has passed initial

review against Defendants Case and Hollingsworth, but such claim will be

dismissed without prejudice as to Defendant Stroup.

C. Retaliation

The Plaintiff appears to claim that after he filed a kiosk grievance that

“the kitchen spread rumors,” Defendant Stroup retaliated by instructing

Defendant Hollingsworth to make the Plaintiff clean up fecal matter from a

wheelchair without telling the Plaintiff it was feces, while Plaintiff was dressed

for his kitchen job [Doc. 10 at 12]; and that after Oshields attacked the

Plaintiff, the Plaintiff lost his job but Oshields was allowed to keep his job [id.

at 15].

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 (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) (citation omitted). The second element of a

retaliation claim requires an action by the defendant that “would likely deter

a person of ordinary firmness from the exercise of First Amendment rights,”

however a “de minimis inconvenience” is insufficient. Constantine v. Rectors

& Visitors George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005) (quoting

ACLU of Md., Inc. v. Wicomico Cnty, Md., 999 F.2d 780, 786 n.6 (4th Cir.

1993)). Bare or conclusory assertions of retaliation are insufficient to

establish a retaliation claim. Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).

Further, 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.

The Plaintiff’s vague and conclusory allegations are insufficient to state

a retaliation claim. See Adams, 40 F.3d at 74. Further, the allegedly

retaliatory action by Defendant Stroup would not likely deter a person of

ordinary firmness from exercising his First Amendment rights. See, e.g.,

Williams v. Calton, No. 7:10-cv-75, 2010 WL 3785786 (W.D. Va. Sept. 28,

2010) (assignment to segregation that entailed limited library time and limited

telephone privileges did not rise above the level of de minimis

inconvenience). With regard to the Plaintiff’s kitchen job, he fails to allege

any facts that would plausibly suggest that his job loss was attributable to

any Defendant, or that there is a causal relationship between the job loss

and any First Amendment activity. Therefore, to the extent that the Plaintiff

attempts to state retaliation claims, they are dismissed.

D. Additional Claims

The Amended Complaint refers in passing to negligence, rude

behavior, and prison policy and procedure. [See, e.g., Doc. 10 at 12-13

(“Sergeant Stroup was rude, hostile, and angry on a daily basis and this

seemed to cause Hope Hollingsworth to be very withdrawn and negligent;”

referring to “procedure” and “policy”)]. It does not appear that the Plaintiff

intended for these allegations to serve as independent claims. Even if he

did intend to do so, they are not cognizable. See generally Davidson, 474

U.S. at 347-48 (a showing of negligence does not rise to the level of

deliberate indifference); Jackson v. Sampson, 536 F. App’x 356, 357 (4th Cir.

2013) (unpublished) (holding that “prison officials’ failure to follow internal

prison policies are not actionable under § 1983 unless the alleged breach of

policy rises to the level of constitutional violation”); Wilson v. McKeller, 254

F. App’x. 960, 961 (4th Cir. 2007) (“threats or verbal abuse, without more, do

not state a cognizable claim under § 1983”). Accordingly, these allegations

are dismissed as frivolous and for failure to state a claim.

ORDER

The Plaintiff has stated a claim for failure to protect against Defendants

Case and Hollingsworth. The remaining claims are dismissed as frivolous

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

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 Case and Hollingsworth, who are alleged to be current or

former employees of NCDPS.

IT IS, THEREFORE, ORDERED that:

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

Defendants Case and Hollingsworth for failure to protect.

2. The remaining claims are DISMISSED WITHOUT PREJUDICE

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

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

set forth in Local Civil Rule 4.3 for Defendants Case and

Hollingsworth, 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: October 30, 2022

a wail

< Reidinger Ls,

Chief United States District Judge lll

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