The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:22-cv-00511-MR
FAITH SHERRIE STREETER, )
)
Plaintiff, )
)
vs. )
) ORDER
)
FNU HARRIS, et al., )
)
Defendants. )
___________________________ )
THIS MATTER is before the Court on initial review of Plaintiff’s
Complaint, filed under 42 U.S.C. § 1983. [Doc. 1]. See 28 U.S.C. §§
1915(e)(2); 1915A. Plaintiff is proceeding in forma pauperis. [Docs. 2, 9].
I. BACKGROUND
Pro se Plaintiff Faith Sherrie Streeter (“Plaintiff”) is a prisoner of the
State of North Carolina currently incarcerated at Anson Correctional
Institution (“Anson CI”) in Polkton, North Carolina. On September 28, 2022,
she filed this action pursuant to 42 U.S.C. § 1983 against Defendant FNU
Harris, identified as a Captain at Anson CI; and FNU Rivers and FNU Guild,
identified as Sergeants at Anson CI; all in their individual and official
capacities. [Doc. 1 at 1-2]. Plaintiff alleges as follows.
On July 31, 2022, at approximately 5:25 p.m., Plaintiff was extracted
from her cell in A pod, Hoke Unit, for flooding her cell. [Id. at 3]. Defendant
Rivers handcuffed Plaintiff and placed her in the shower area. Defendant
Rivers, assisted by other staff, retrieved Plaintiff’s property from her cell.
Defendants Rivers, Guild, and Harris and Officer Haye returned to the
shower area and, after Haye told Plaintiff, “[D]on’t try nothing stupid or we’re
going to fuck you up,” Defendant Harris instructed Haye to deploy OC pepper
spray into the shower on Plaintiff.1 Defendant Rivers removed Plaintiff from
the shower and Defendant Guild escorted Plaintiff to the nurses’ station. On
the way to the nurses’ station, Defendant Guild pushed Plaintiff into a wall
even though Plaintiff was not resisting. Once at the nurses’ station and while
Plaintiff was restrained, Defendant Guild twisted Plaintiff’s arm behind her
back. Defendant Guild and Plaintiff had some sort of altercation after which
the nurse refused to assess Plaintiff. [Id. at 3]. Plaintiff was then placed in
full restraints. She explained to Defendant Guild that she had an existing
injury to her left shoulder and that Guild was causing her extreme pain by
twisting Plaintiff’s arm. Defendant Guild replied, “so what.” Defendants
Rivers and Guild escorted Plaintiff back to her pod and Defendant Guild
1 For reasons not apparent from Plaintiff’s Complaint, Plaintiff does not name Officer Haye
as a Defendant.
again forced Plaintiff against the wall, falsely claiming that Plaintiff was trying
to spit on her. Plaintiff was placed in an empty cell in A pod and left in full
restraints without having been decontaminated. Plaintiff asked, “What about
my shower? I have not been decontaminated!” Defendant Harris responded,
“yes you have,” and all staff exited the pod. [Id. at 4].
When the next shift arrived, Plaintiff told Sergeant Kendall that she had
not decontaminated. Lieutenant Russel reviewed the footage from the
incident and confirmed that Plaintiff had not decontaminated. Sergeant
Kendall escorted Plaintiff to the shower and, once complete, Plaintiff was
returned to her cell and her property was returned shortly after. [Id.].
Plaintiff claims that the alleged conduct violated her rights under the
Eight Amendment due to the use of excessive force and cruel and unusual
punishment. Plaintiff also seeks to state claims for negligence and
conspiracy. [Id. at 2; see id. at 3-6]. For injuries, Plaintiff claims inflammation
and temporary immobilization of her left shoulder due to prolonged restraint,
“emotional duress” from having endured pepper spray on her face and arms,
and extreme anxiety. [Id. at 6]. Plaintiff seeks monetary relief only. [Id. at
8].
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 Claims
“[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 claims, therefore,
do not survive initial review and will be dismissed.
B. Eighth Amendment
To state a claim under § 1983, a plaintiff must allege that she 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 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). “Prison conditions may be harsh and uncomfortable without
violating the Eighth Amendment prohibition against cruel and unusual
punishment.” Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997). 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 her favor, Plaintiff’s Eighth
Amendment claims based on the use of excessive force and cruel and
unusual punishment survive initial review as not clearly frivolous.2
2 The Court will allow Plaintiff’s negligence claim, which is based on the same conduct as
Plaintiff’s cruel and unusual punishment claim – that is, leaving Plaintiff in full restraints
C. Conspiracy
To establish a civil conspiracy under § 1983, a plaintiff must show that
the defendants “acted jointly in concert and that some overt act was done in
furtherance of the conspiracy which resulted in [plaintiff's] deprivation of a
constitutional right.” Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir.
1996); see Hafner v. Brown, 983 F.2d 570, 576 n. 6 (4th Cir. 1992). An
essential element in any conspiracy to deprive the plaintiff of her
constitutional rights is an agreement to do so among the alleged co-
conspirators. Ballinger v. North Carolina Ag. Extension Serv., 815 F.2d 1001
(4th Cir. 1987). Without such a meeting of the minds, the independent acts
of two or more wrongdoers does not amount to a conspiracy. Murdaugh
Volkswagen v. First Nat'l Bank, 639 F.2d 1073 (4th Cir. 1981). Where the
complaint makes only conclusory allegations of a conspiracy under § 1983
and fails to demonstrate any agreement or meeting of the minds among the
defendants, the court may properly dismiss the complaint. See Woodrum v.
Woodward County Okl., 866 F.2d 1121 (9th Cir. 1989); Cole v. Gray, 638
F.2d 804 (5th Cir. 1981). General allegations that defendants entered into an
agreement, without sufficiently alleging plausible grounds to infer such an
and not decontaminated after having been pepper sprayed for some hours, to survive
initial review at this early stage of the proceedings. [See Doc. 1 at 5].
agreement, fail to state a § 1983 conspiracy claim. Wiggins v. 11 Kew
Garden Court, 497 F. App'x 262 (4th Cir. 2012).
Plaintiff here claims Defendants “all conspired to violated [her] rights
on 7/31/2022 when they all conspired to deny [her] right to decontamination.”
[Doc. 1 at 5]. Taking Plaintiff’s allegations as true and construing all
inferences in Plaintiff's favor, Plaintiff’s conspiracy claim is not clearly
frivolous and survives initial review.
IV. CONCLUSION
In sum, Plaintiff’s Complaint survives initial review except for Plaintiff’s
official capacity claims, which will be dismissed.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff’s Eighth Amendment,
negligence, and conspiracy claims against Defendants in their individual
capacities pass initial review in accordance with the terms of this Order.
Plaintiff’s official capacity claims are DISMISSED.
IT IS, THEREFORE, ORDERED that Clerk of Court shall commence
the procedure for waiver of service as set forth in Local Civil Rule 4.3 for
Defendants, who are alleged to be current or former employees 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: November 9, 2022
Martifi Reidinger ey
Chief United States District Judge MS