# Torres v. Dye

> District Court, W.D. North Carolina · January 10, 2023

URL: https://www.frixlaw.com/law-library/cases/10259524

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** January 10, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10259524. Public record. Not legal advice.