The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:22-cv-00215-MR
KETOINE MITCHELL, )
)
Plaintiff, )
)
vs. )
)
PHILLIP MCGREGOR KAY, et al., ) ORDER
)
Defendants. )
___________________________________ )
THIS MATTER is before the Court on initial review of the Plaintiff’s pro
se Complaint [Doc. 1]. The Plaintiff is proceeding in forma pauperis. [Doc.
8].
I. BACKGROUND
The pro se incarcerated Plaintiff filed this action pursuant to 42 U.S.C.
§ 1983, complaining about an incident that allegedly occurred at the Craggy
Correctional Institution.1 The Plaintiff names as Defendants in their
individual capacities: Phillip Kay McGregor, a correctional sergeant; and
Kendal Higdon, a correctional officer. [Doc. 1 at 2]. He claims that the
1 The Plaintiff is presently incarcerated at the Alexander Correctional Institution.
Defendants violated the Eighth Amendment, state law, and policy. [Id. at 3-
4]. Specifically, the Plaintiff alleges:
On [September 16, 2021, between 1:30 and 6:00 pm] I was
assaulted by Officer Higdon, and then placed in full restraints
from 2 pm to 6 pm by Sgt. Kay. On said date and time I was
handcuffed by Officer Higdon and escorted from building 2C to
the recreational building. Once we got inside Officer Higdon
grabbed me and ran me into the wall. He then slammed me to
the ground landing on top of me, then slammed my head face
first into the concrete, leaving a gash and cuts on my face. Blood
began to pour from my face immediately. Sgt. Kay then placed
me in full restraints and put me inside of a holding cell from 2pm-
6 pm without being allowed any medical treatment. At 6 pm I
was transported to Mission Hospital in Asheville for treatment…..
[Id. at 5]. As injury, he claims that he received cuts to his face and a “gash”
above his eye that required stitches. [Id. at 5]. He seeks compensatory and
punitive damages. [Id.].
II. STANDARD OF REVIEW
Because the Plaintiff is proceeding in forma pauperis, the Court must
review the 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, 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).
IV. 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 Eighth Amendment protects prisoners from inhumane methods of
punishment and from inhumane conditions of confinement. Williams v.
Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). To establish an Eighth
Amendment claim, an inmate must satisfy both an objective component—
that the harm inflicted was sufficiently serious—and subjective component—
that the prison official acted with a sufficiently culpable state of mind.
Williams, 77 F.3d at 761.
Taking the Plaintiff’s allegations as true and giving him the benefit of
every reasonable inference, the Court finds that the Plaintiff’s Eighth
Amendment claims survive initial review as not clearly frivolous.
The Court liberally construes the Complaint as raising claims of assault
and battery under North Carolina law. [Doc. 1 at 4]. Because the Plaintiff’s
Eighth Amendment claims have passed initial review, and the assault and
battery claims are part of the same case or controversy, the Court will
exercise supplemental jurisdiction over them at this time. See 28 U.S.C.
§ 1367(a).
V. CONCLUSION
For the foregoing reasons, the Court concludes that the Complaint
survives initial review.
ORDER
IT IS, THEREFORE, ORDERED that:
1. The Plaintiff’s Eighth Amendment claims have passed initial review
against the Defendants Kay and Higdon, and the Court exercises
supplemental jurisdiction over the Plaintiff’s North Carolina assault
and battery claims.
2. ITIS FURTHER ORDERED that the Clerk of Court shall commence
the procedure for waiver of service as set forth in Local Civil Rule
4.3 for Defendants Kay and Higdon, who are alleged to be current
or former employees of the North Carolina Department of Public
Safety.
The Clerk is respectfully instructed to mail the Plaintiff an Opt-In/Opt-
Out form pursuant to Standing Order 3:19-mc-O0060-FDW.
IT IS SO ORDERED.
Signed: January 3, 2023
Martifi Reidinger ey
Chief United States District Judge AS