Torres v. Dye

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:20-cv-00164-MR

JONATHAN ANTHONY LEE TORRES, )

)

Plaintiff, )

)

vs. )

)

ERIC DYE, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on the Plaintiff’s Motion to Amend

the Amended Complaint [Doc. 37], and on initial review of the proposed

Second Amended Complaint [Doc. 37-1]. Also pending are the Plaintiff’s

“Motion to Opt-Out of Services from North Carolina Prison Legal Services”

[Doc. 35]; “Request for Subpoenas for Depositions of Fact Witnesses” [Doc.

38]; Motion to Compel Discovery [Doc. 42]; Motion to Extend the Case

Management Order [Doc. 44]; and Motion for Written Deposition on Non-

Party Fact Witnesses [Doc. 47].1 The Plaintiff is proceeding in forma

pauperis. [Doc. 9].

1 The Plaintiff recently filed a Motion for Sanctions [Doc. 45] to which the Defendants have

responded [Doc. 49]. However, the Plaintiff’s time to reply has not yet expired.

I. BACKGROUND

The pro se incarcerated Plaintiff filed this civil rights action pursuant to

42 U.S.C. § 1983 addressing incidents that allegedly occurred at the

Alexander Correctional Institution.2 The Complaint [Doc. 1] passed initial

review against Defendants Biecker, Brown, Carroll, Chester, Clawson,

Delozier, Dye, Franks, Morrison, Moss, Poteat, Powell, and Turner, for

retaliation, and against Defendant Moss for a due process violation. [Doc.

12]. The Court granted the Plaintiff the opportunity to amend [id.], and the

Amended Complaint [Doc. 17] passed initial review on the same § 1983

claims. [Doc. 19]. The Court also exercised supplemental jurisdiction over

the Plaintiff’s claim against Defendant Moss for violating North Carolina

Constitution Article I, Section 19. [Doc. 19]. All of the Defendants were

served and filed an Answer except for Defendant Powell, whom the Court

dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

[Docs. 29, 33]. The Court entered a Pretrial Order and Case Management

Plan setting the deadline to amend and add parties as September 30, 2022,

the discovery cutoff date as December 9, 2022, and the deadline to file

dispositive motions as January 9, 2023. [Doc. 34]. The Pretrial Order also

appointed North Carolina Prisoner Legal Services (NCPLS) to assist the

2 The Plaintiff is presently incarcerated at the Marion Correctional Institution.

Plaintiff with discovery pursuant to the Plaintiff’s requests. [Docs. 15, 16

(Plaintiff’s Responses to Notice (NCPLS))].

The Motion to Amend is granted,3 and the Second Amended Complaint

will be reviewed for frivolity pursuant to 28 U.S.C. § 1915.

The Plaintiff continues to assert claims of retaliation, due process

violations, and violations of North Carolina Constitution Article 1, Section 19.4

[Doc. 37-1 at 3]. He seeks to add § 1983 claims for “supervisor liability,” and

claims under North Carolina law for negligence, and for violations of North

Carolina Constitution Article 1, Section 1. [Id.]. He seeks a declaratory

judgment; injunctive relief; nominal, compensatory, and punitive damages;

reasonable costs and attorney’s fees;5 a jury trial, and other relief the court

may deem just and proper. [Id. at 1, 5].

3 After a first amendment as a matter of right, a plaintiff may amend with permission from

the court, which “shall be freely granted when justice so requires.” Fed. R. Civ. P.

15(a)(2).

4 The Plaintiff does not appear to reassert his claims for property deprivations, his

placement in segregation, the denial or rejection of his grievances, equal protection

violations, violation of his right to access to the courts, cruel and unusual punishment,

conspiracy, or violations of prison policy and procedure. Even if he had attempted to do

so, these claims would be dismissed for the same reasons previously discussed. [See

Doc. 12].

5 The Plaintiff is not represented by counsel at this time.

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

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, 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

A. Disciplinary Proceedings

Construing the Second Amended Complaint liberally, the Plaintiff

reiterates his claim that Defendant Moss violated due process with regard to

a disciplinary video. This claim again passes initial review, as it is not clearly

frivolous. [See Doc. 12 at 7-8].

The Plaintiff appears to claim that Defendants Morrison, Brown, and

Poteat fabricated disciplinary charges against him, and that Defendant Dye

approved the erroneous removal of the Plaintiff’s mother from the Plaintiff’s

visitation list. [Doc. 37-1 at 23, 32-33, 35-36]. These claims are dismissed

for the same reasons previously discussed. [See Doc. 12 at 6-7].

The Plaintiff also claims that his written statement was not attached to

a disciplinary report, and that Defendant Chester was not provided as a

witness at a disciplinary hearing pursuant to Plaintiff’s request. [Doc. 37-1

at 33]. These allegations appear to refer to the March 29, 2020 infraction

that was heard before DHO Patricia Blackburn on April 7, 2020. [Id.; see

Doc. 1-1 at 13 (Record of Hearing)]. The Plaintiff fails to explain which

Defendant(s) he is attempting to hold liable for failing to call Defendant

Chester as a witness, and for failing to attach his written statement to the

disciplinary report. As such, this claim is too vague and conclusory to

proceed.6 [See Doc. 12 at 17-18].

B. Classification and Housing

To the extent that the Plaintiff again claims that he was improperly

placed in full restraints for six hours, this fails to state a claim for the reasons

previously discussed.7 [See Doc. 12 at 13-14].

C. Retaliation

The Plaintiff appears to assert the retaliation claims against

Defendants Biecker, Brown, Carroll, Chester, Clawson, Delozier, Dye,

Franks, Morrison, Moss, Poteat, and Turner that previously passed initial

review. [Doc. 37-1 at 23-25, 28-29, 31-32, 34-36]. For the reasons

discussed in its prior Order, the Court concludes that the Plaintiff’s retaliation

claims pass initial review against these Defendants, in that such claims are

not clearly frivolous. [Doc. 12 at 18-20].

6 This claim also cannot proceed to the extent that it refers to individuals who are not

named as a defendants. See Fed. R. Civ. P. 10(a) (“The title of the complaint must name

all the parties”); Myles v. United States, 416 F.3d 551 (7th Cir. 2005) (“to make someone

a party the plaintiff must specify him in the caption and arrange for service of process.”);

Perez v. Humphries, No. 3:18-cv-107-GCM, 2018 WL 4705560, at *1 (W.D.N.C. Oct. 1,

2018) (“A plaintiff’s failure to name a defendant in the caption of a Complaint renders any

action against the purported defendant a legal nullity”).

7 For the reasons previously discussed, this claim would also be dismissed if the Plaintiff

had asserted it as an Eighth Amendment violation. [See Doc. 12 at 23-26].

D. Supervisory Liability

The Plaintiff asserts a claim for “supervisor liability.” [Doc. 37 at 1]. He

appears to claim that Defendants Biecker, Brown, Chester, Clawson, Dye,

Moss, and Poteat, have supervisory responsibilities [Doc. 37-1 at 16-22]; that

Defendants Dye, Brown, and Poteat allowed their subordinates to violate the

Plaintiff’s constitutional rights by, inter alia, placing him in full restraints for

six hours [Doc. 37-1 at 5, 32-34]; and that Defendants Chester, Biecker, and

Dye allowed their subordinates to retaliate against the Plaintiff [id. at 23, 32-

35] and to fabricate evidence and disciplinary infractions against him [id. at

23, 34-35].

A supervisor can be liable under § 1983 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) that there was an “affirmative causal link” between his

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

Cir. 1994) (internal quotation marks omitted).

The Plaintiff’s retaliation claims have already passed initial review

against Defendants Biecker, Chester and Dye. To the extent that the Plaintiff

seeks to asserts retaliation claims against those Defendants on a

supervisory theory as well, those claims will likewise be allowed to pass initial

review. The Plaintiff’s other supervisory claims are dismissed because they

are based on the theory of respondeat superior [see Doc. 12 at 5-6], and/or

they are based on claims of underlying actions by subordinates that did not

themselves pass initial review. See Waybright v. Frederick Cnty., Md., 528

F.3d 199, 203 (4th Cir. 2008) (“supervisors … cannot be liable under § 1983

without some predicate ‘constitutional injury at the hands of the individual

[state] officer,’ at least in suits for damages.”) (quoting City of Los Angeles v.

Heller, 475 U.S. 796, 799 (1986)). Accordingly, the Plaintiff’s claims based

on supervisory liability have passed initial review against Defendants

Biecker, Chester and Dye for retaliation, but the remaining supervisory

claims are dismissed.

E. Supplemental Jurisdiction

The Plaintiff again asserts a claim for the violation of North Carolina

Constitution Article I, Section 1. However, he has again failed to allege any

facts in support of such a claim, and the Court declines to exercise

supplemental jurisdiction for the same reasons previously discussed. [Doc.

19 at 8].

The Plaintiff again asserts a claim for the violation of North Carolina

Constitution Article I, Section 19 against Defendant Moss. [Doc. 37-1 at 3].

The Court previously exercised supplemental jurisdiction over Plaintiff’s

claim against Defendant Moss for violating Article I, Section 19 and it does

so again for the same reasons. [See Doc. 19 at 8].

The Plaintiff also appears to assert North Carolina negligence claims

against: Defendants Biecker, Brown, Carroll, Chester, Delozier, Dye,

Morrison, Poteat, and Turner with regard to the alleged retaliation [Doc. 37-

1 at 23-24, 26, 32-36]; against Defendants Dye and Turner with regard to the

full-restraint incident [id. at 33-34]; against Defendant Moss with regard to

the disciplinary video [id. at 23-24]; and against NCDPS for negligently

training its SRG staff [id. at 27-28].

The Court will exercise supplemental jurisdiction over the negligence

claim against Defendant Moss, Biecker, Brown, Carroll, Chester, Delozier,

Dye, Morrison, Poteat, and Turner insofar as they are related to § 1983

claims have passed initial review. However, the remaining claims are not

related to any § 1983 claim that has passed initial review and the Court

declines to exercise supplemental jurisdiction over them at this time. [See

Doc. 19 at 6-9].

F. Pending Motions

In the Motion to Opt-Out of Services from North Carolina Prisoner

Legal Services [Doc. 35], the Plaintiff asks the Court to withdraw his request

for NCPLS’s appointment because he wished to conduct discovery on his

own. The Motion is denied as moot because NCPLS has filed a Notice of

Non-Representation. [Doc. 36].

In his “Request”8 [Doc. 38] and Motion for Written Deposition [Doc. 47],

the Plaintiff appears to seek leave from the Court for the issuance of

subpoenas to depose the following non-parties by written questions: Patricia

Blackburn; Sergeant Goon; Sergeant Daves; Sergeant Wilson; and Jennifer

Hice. [Doc. 47]. He claims that these individuals have “information relevant

and critical to establish claims.” [Doc. 47 at 1]. The Federal Rules of Civil

Procedure provide that any person may be deposed by written questions

upon stipulation of the parties, or leave of court. Fed. R. Civ. P. 31(a)(1)-(2).

However, the Plaintiff does not claim to have served the written questions on

the parties along with a notice informing them of the deponents’ names and

addresses, and identifying the officer before whom the depositions will be

taken. See Fed. R. Civ. P. 31(a)(3). Nor does he state that he is willing or

able to pay the expenses related to taking and recording such depositions.9

8 The Court liberally construes the “Request” as a Motion for Subpoenas. The Plaintiff is

reminded that requests to the Court must be in the form of Motions. [See Doc. 3 at ¶ 5

(Order of Instructions)]. Any future filings that fail to comply with the applicable rules

and/or this Court’s Orders will be disregarded and may be stricken.

9 To the extent that the Plaintiff is attempting to serve interrogatories on non-parties, he

may not do so. See Fed. R. Civ. P. 45 (providing for discovery from non-parties in the

form of depositions, the production of documents, electronically stored information, or

See generally United States v. MacCollom, 426 U.S. 317, 321 (1976) (“The

established rule is that the expenditure of public funds is proper only when

authorized by Congress....”); see also Fed. R. Civ. P. 30(b)(3) (the party

noticing a deposition must state in the notice the method for recording the

testimony, and “[t]he noticing party bears the recording cost”). Accordingly,

his requests for leave to depose witnesses by written questions, and for the

issuance of subpoenas regarding the same, are denied.

In his Motion to Compel Discovery [Doc. 42], the Plaintiff claims that

he served defense counsel with interrogatories on August 30, 2022; counsel

did not respond within 30 days or request an extension of time; and the

discovery he seeks is proper and appropriate. The Plaintiff states in his

Motion to Extend Case Management Order [Doc. 44] that he has now

received the Defendants’ responses. Accordingly, the Motion will be denied

as moot.

Finally, the Plaintiff moves for an extension of the case management

deadlines because, inter alia, he needs additional time to review the

Defendants’ discovery responses, and to resolve discovery disputes with

tangible things in that person’s possession, or the inspection of premises); see also Fed.

R. Civ. P. 33 (“a party may serve on any other party no more than 25 written

interrogatories….”) (emphasis added).

defense counsel. [Doc. 44]. The Plaintiff’s Motion will be granted in that the

case management deadlines will be extended for 30 days.

IV. CONCLUSION

In sum, the Motion to Amend is granted, and the Second Amended

Complaint has passed initial review against Defendants Biecker, Brown,

Carroll, Chester, Clawson, Delozier, Dye, Franks, Morrison, Moss, Poteat,

and Turner for retaliation; against Defendant Moss for violating due process;

and against Defendants Biecker, Chester, and Dye for supervisory liability

as described in this Order. The Court will exercise supplemental jurisdiction

over the Article I, Section 19 claim against Defendant Moss, and for North

Carolina negligence against Defendants Biecker, Brown, Carroll, Chester,

Delozier, Dye, Morrison, Moss, Poteat, and Turner as described in this

Order. The remaining claims are dismissed without prejudice. The Plaintiff’s

Motion for an extension of the case management deadlines is granted and

the remaining Motions are denied.

IT IS, THEREFORE, ORDERED that:

1. The Motion to Amend [Doc. 37] is GRANTED and the Clerk is

instructed to docket the Second Amended Complaint [Doc. 37-1] as

a separate docket entry.

2. The Second Amended Complaint has passed initial review against

Defendants Biecker, Brown, Carroll, Chester, Clawson, Delozier,

Dye, Franks, Morrison, Moss, Poteat, and Turner for retaliation;

against Defendant Moss for violating due process; and against

Defendants Biecker, Chester, and Dye for supervisory liability as

described in this Order. The Court will exercise supplemental

jurisdiction over the Plaintiff’s Article I, Section 19 claim against

Defendant Moss, and over the Plaintiff’s negligence claims against

Defendants Biecker, Brown, Carroll, Chester, Delozier, Dye,

Morrison, Moss, Poteat, and Turner as described in this Order.

3. The remaining claims are DISMISSED WITHOUT PREJUDICE.

4. The Plaintiff’s “Motion to Opt-Out of Services from North Carolina

Prison Legal Services” [Doc. 35] is DENIED AS MOOT.

5. The Plaintiff’s “Request for Subpoenas for Depositions of Fact

Witnesses” [Doc. 38] is construed as a Motion for Subpoenas and

is DENIED.

6. The Plaintiff’s Motion to Compel Discovery [Doc. 42] is DENIED AS

MOOT.

7. The Plaintiff’s Motion to Extend the Case Management Order [Doc.

44] is GRANTED. The discovery cutoff date is February 8, 2023,

and the parties shall have until March 8, 2023 to file dispositive

motions.

8. The Plaintiffs Motion for Written Deposition on Non-Party Fact

Witnesses [Doc. 47] is DENIED.

IT IS SO ORDERED.

Signed: January 9, 2023

ia ee

Chief United States District Judge MS

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