# Ellerbe v. Ishee

> District Court, W.D. North Carolina · April 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10259675

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** April 25, 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. 5:22-cv-00075-MR

CHRISTOPHER D. ELLERBE, )
)
Plaintiff, )
)
vs. )
)
TODD E. ISHEE, et al., ) ORDER
)
Defendants. )
_______________________________ )

THIS MATTER is before the Court on initial review of the pro se
Second Amended Complaint. [Doc. 16]. Also pending are the Plaintiff’s
Motion for Appointment of Counsel [Doc. 17] and “Motion for Court’s Order
Response to Complaint” [Doc. 19]. The Plaintiff is proceeding in forma
pauperis. [Doc. 10].
I. BACKGROUND
The pro se Plaintiff filed this action pursuant to 42 U.S.C. § 1983
regarding the conditions of his confinement at the Alexander Correctional
Institution.1 Before the Complaint was reviewed for frivolity, the Plaintiff
moved to amend. [See Doc. 11]. The Court denied the Motion as moot and

1 The Plaintiff is presently incarcerated at the Warren Correctional Institution.
granted the Plaintiff the opportunity to file a superseding amended complaint.
[Doc. 12]. The Plaintiff filed a piecemeal Amended Complaint [Doc. 13]

which the Court dismissed, and the Plaintiff was given yet another
opportunity to amend [Doc. 15]. The Second Amended Complaint is now
before the Court for initial review. [Doc. 16].

The Plaintiff names as Defendants: Todd E. Ishee, the former North
Carolina commissioner of prisons; the North Carolina Department of Adult
Corrections (NCDAC);2 Larry Williamson, the NCDAC regional director; Lane
Honeycutt, the Alexander CI administrator; Jeffrey Duncan and Eric Dye,

Alexander CI associate wardens;3 and Stephen W. Coates, a prison
psychologist. [Doc. 16 at 2-3]. The Plaintiff claims that he experienced
conditions at Alexander CI that violate the First, Eighth, and Fourteenth

Amendments. [Id. at 3, 5]. For injury, he claims: “mentally suffering,
emotional distress, muscles atrophy, muscles aching, stiffness, stomach
cramps, constipation, neck pain, lethargy, depression and anxiety – due to
being denied recreational yard exercise, (22) and a half hours everyday

locked in cell – and denial of religious services.” [Id. at 11] (errors

2 Formerly the North Carolina Department of Public Safety (NCDPS).

3 Defendants Ishee, Williamson, Honeycutt, Duncan, and Dye will be referred to as the
“Administrative Defendants” for ease of discussion.
uncorrected). He seeks a declaratory judgment, preliminary and permanent
injunctive relief, compensatory and punitive damages, a jury trial, an award

of costs, and any additional relief the Court deems just, proper, and
equitable.4 [Id.].
The Plaintiff seeks the appointment of counsel and review of his

Complaint. [Docs. 17, 19].
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 “(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).
In its frivolity review, a court must determine whether a complaint
raises an indisputably meritless legal theory or is founded upon clearly

4 The Plaintiff’s claims for declaratory and injunctive relief are moot because the Plaintiff
has been transferred to another prison and the conditions about which he complains are
unlikely to recur. See Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007) (“the
transfer of an inmate from a unit or location where he is subject to [a] challenged policy,
practice, or condition, to a different unit or location where he is no longer subject to the
challenged policy, practice, or condition moots his claims for injunctive and declaratory
relief.”).
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
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
It appears that the Plaintiff may be attempting to assert claims on
behalf of himself as well as other inmates. [See, e.g., Doc. 16 at 8 (referring
to the “whole general population”)]. As a pro se prisoner, he is not qualified

to do so. See Myers v. Loudoun Cnty. Pub. Schls., 418 F.3d 395, 400 (4th
Cir. 2005) (“An individual unquestionably has the right to litigate his own
claims in federal court The right to litigate for oneself, however, does not

create a coordinate right to litigate for others”); Hummer v. Dalton, 657 F.2d
621, 625 (4th Cir. 1981) (prisoner’s suit is “confined to redress for violations
of his own personal rights and not one by him as knight-errant for all

prisoners.”); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (“it is
plain error to permit [an] imprisoned litigant who is unassisted by counsel to
represent his fellow inmates in a class action.”). Accordingly, the claims that

the Plaintiff attempts to assert on behalf of others are dismissed.
The body of the Complaint also appears to contain allegations against
individuals who are not named as defendants in the caption as required by
Rule 10(a) of the Federal Rules of Civil Procedure. [See, e.g., Doc. 16 at 10

(referring to “Medical staff”)]. 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,
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”). The allegations

directed at individuals not named as Defendants are therefore dismissed.
The Plaintiff purports to sue Defendants, who are state officials, in their
individual and official capacities. However, “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. Dep’t 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, 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). As such, Plaintiff’s claims
against Defendants in their official capacities are dismissed.
B. Conditions of Confinement

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). “The Eighth Amendment ‘does

not prohibit cruel and unusual prison conditions.’” Thorpe v. Clarke, 37 F.4th
926, 940 (4th Cir. 2022) (quoting Strickler v. Waters, 989 F.2d 1375, 1381
(4th Cir. 1993)). “It asks instead whether the conditions of confinement inflict
harm that is, objectively, sufficiently serious to deprive of minimal civilized

necessities.” Id. (citation omitted). “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). Extreme deprivations are required. Hudson v. McMillian, 503
U.S. 1, 9 (1992).

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. The Supreme Court has
stated that “a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless
the official knows of and disregards an excessive risk to inmate health or

safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[T]he official must
both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.”

Id. A plaintiff must also allege “a serious or significant physical or emotional
injury resulting from the challenged conditions.” Strickler, 989 F.2d at 1381.
A reviewing court “owe[s] ‘substantial deference to the professional
judgment of prison administrators.’” Beard v. Banks, 548 U.S. 521, 528

(2006) (quoting Overton v. Bazzetta, 539 U.S. 126, 132 (2003)).
“[R]estrictive prison regulations are permissible if they are ‘reasonably
related to legitimate penological [objectives],’ and are not an ‘exaggerated

response’ to such objectives.” Id. (quotations omitted) (quoting Turner v.
Safley, 482 U.S. 78, 87 (1987)). The length of time Plaintiff was subjected
to the harsh conditions is an important factor in analyzing whether his

constitutional rights were violated. See Beverati v. Smith, 120 F.3d 500, 504
(4th Cir. 1997).
“[I]n certain circumstances, restricting inmates’ opportunities for

physical exercise constitutes cruel and unusual punishment in violation of
the Eight Amendment.” Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980)
(citations omitted). “In deciding whether conditions at a jail are so onerously
burdensome as to reach constitutional dimensions, courts must look at the

totality of the circumstances, including the extent to which the restrictions
adversely affect the mental or physical health of the inmate.” Id. (citations
omitted). These circumstances include the overall duration of incarceration,

the length of time for which prisoners are locked in their cells each day, and
the practical opportunities for the institution to provide prisoners with
increased exercise opportunities. Mitchell v. Rice, 954 F.2d 187, 191 (4th
Cir. 1992). “Thus, confinement or punishment conditions imposed under one

set of circumstances may constitute an Eighth Amendment violation; yet the
same conditions, imposed under different circumstances, would not.” Id.
The Plaintiff claims that the Administrative Defendants imposed

conditions that violate the Eighth Amendment in that there has been no
outside recreation at Alexander CI since October 2021; that inmates are
locked in their cells at all times, save for 1.5 hours each day when they are

released to shower; that the cells are too small for exercise; and that exercise
is not permitted in the dayroom. [Doc. 16 at 5-9]. The Plaintiff claims that
these conditions are being imposed without any penological justification, that

they amount to punishment, and that Defendants Ishee, Williamson, Duncan,
and Dye are using the “excuse” that they are short-staffed. [Id. at 6, 9]. The
Plaintiff claims that these conditions are causing him constant mental
suffering, emotional distress, muscles atrophy, muscles aching, stiffness,

stomach cramps, constipation, neck pain, lethargy, depression and anxiety.
[Id. at 8].
Assuming arguendo that these conditions are adequately severe, the

Plaintiff has failed to allege that the administrative Defendants knew of and
disregarded an excessive risk to his health or safety. Further, the Plaintiff
has not adequately alleged that he suffered a serious or significant mental
or emotional injury as a result of the conditions at issue. See Fed. R. Civ. P.

8(a)(2) (requiring a “short and plain statement of the claim showing that the
pleader is entitled to relief”); Simpson v. Welch, 900 F.2d 33, 35 (4th Cir.
1990) (conclusory allegations, unsupported by specific allegations of

material fact are not sufficient); Dickson v. Microsoft Corp., 309 F.3d 193,
201-02 (4th Cir. 2002) (a pleader must allege facts, directly or indirectly, that
support each element of the claim). The Plaintiff’s claims that the

Administrative Defendants violated his Eighth Amendment rights in this
regard are, therefore, dismissed.
C. Deliberate Indifference to a Serious Medical Need

Claims under 42 U.S.C. § 1983 based on an alleged lack of or
inappropriate medical treatment also fall within the Eighth Amendment’s
prohibition against cruel and unusual punishment. Estelle v. Gamble, 429
U.S. 97, 104 (1976). For the sake of clarity, however, the Court will treat this

claim separately here. To state a claim under the Eighth Amendment on this
ground, a plaintiff must show a “deliberate indifference to serious medical
needs” of the inmate. Id. “Deliberate indifference requires a showing that

the defendants actually knew of and disregarded a substantial risk of serious
injury to the detainee or that they actually knew of and ignored a detainee's
serious need for medical care.” Young v. City of Mt. Ranier, 238 F.3d 567,
575-76 (4th Cir. 2001) (citations omitted); see also Grayson v. Peed, 195 F.3d

692, 695 (4th Cir. 1999) (“Deliberate indifference is a very high standard—a
showing of mere negligence will not meet it.”). To establish a deliberate
indifference claim against non-medical personnel, a prisoner must show that

the non-medical personnel failed to promptly provide needed medical
treatment, deliberately interfered with prison doctors’ treatment, or tacitly
authorized or were indifferent to prison physicians’ misconduct. Miltier v.

Beorn, 896 F.2d 848, 854 (4th Cir. 1990).
The Plaintiff appears to claim that the Administrative Defendants were
deliberately indifferent to his serious physical and psychological needs by

imposing the conditions discussed supra. The claims against the
Administrative Defendants are dismissed because the Plaintiff does not
allege that the Defendants, who are all non-medical personnel, had
subjective knowledge of the substantial risk of harm to the Plaintiff from these

conditions. The subjective element of a deliberate indifference claim,
therefore, is lacking.
The Plaintiff further claims that Defendant Coates, a psychologist,

knew that the Plaintiff is a “Level (3) mental patient” who is not supposed to
be held inside for 22 hours per day pursuant to North Carolina Policy &
Procedures; that the Plaintiff told Coates that the described conditions were
causing depression and anxiety “on a greater level;” and that Coates refused

to intervene on the Plaintiff’s behalf.” [Doc. 16 at 9].
The Plaintiff’s claim that Defendant Coates violated his constitutional
rights by failing to enforce a prison policy fails to state a claim because a

policy violation does not, by itself, rise to the level of a § 1983 claim absent
a plausible allegation of an underlying constitutional violation. See generally
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”). Further, the Plaintiff’s reference to a greater level

of anxiety and depression does not sufficiently allege that Defendant Coates
was aware of, and deliberately disregarded, a substantial risk of serious
harm. See Dickson, 309 F.3d at 201-02. Accordingly, the Plaintiff’s claims
of deliberate indifference to a serious medical need are dismissed.

D. Religious Exercise
To state a free exercise claim under the First Amendment, a plaintiff
must allege facts sufficient to show that: (1) he held a sincere religious belief

and (2) that his religious practice has been substantially burdened by a
prison policy or practice. See generally Hernandez v. C.I.R., 490 U.S. 680,
699 (1989); Greenhill v. Clarke, 944 F.3d 243, 253 (4th Cir. 2019). A prison
policy that substantially burdens an inmate’s ability to practice his religion

withstands a First Amendment challenge when it is “reasonably related to
legitimate penological interests.” O’Lone v. Estate of Shabazz, 482 U.S. 342,
349 (1987) (quoting Turner, 482 U.S. at 89). “A substantial burden either

puts pressure on a person to change his religious beliefs or puts that person
to a choice between abandoning his religion or following his beliefs and
losing some government benefit.” Firewalker-Fields v. Lee, 58 F.4th 104, 114

(4th Cir. 2023) (citing Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006)). If
that threshold showing is made, the prisoner must then show that the
practice or regulation is not “reasonably related to legitimate penological

interests.” Id. (quoting Turner, 482 U.S. at 89).
The Plaintiff claims that he is a practicing Messianic Jew; that
Alexander CI has not offered religious services since October 2021; and that
the Plaintiff is forbidden to meet with a rabbi or to “practice the freedom and

fellowship” with other inmates. [Doc. 16 at 5-7].
These allegations suggest that the religious restrictions
inconvenienced the Plaintiff. However, he fails to plausibly allege that the

Defendants substantially burdened his sincere religious beliefs. See
McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir. 2004) (a mere
inconvenience to the exercise of religion fails to give rise to a First
Amendment violation); Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir.

1999) (citations omitted) (“[d]e minimis burdens of the free exercise of
religion are not of constitutional dimension.”). Further, he has failed to
support his conclusory contention that such was not reasonably related to
legitimate penological interests with any factual allegations. Accordingly, the
Plaintiff has failed to state a First Amendment claim.

E. Due Process
To prevail on a procedural due process claim, an inmate must first
demonstrate that he was deprived of “life, liberty, or property” by
governmental action. Bevrati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997).

Changes “in a prisoner’s location, variations of daily routine, changes in
conditions of confinement (including administrative segregation), and the
denial of privileges [are] matters which every prisoner can anticipate [and

which] are contemplated by his original sentence to prison.” Gaston v.
Taylor, 946 F.2d 340, 343 (4th Cir. 1991); Slezak v. Evatt, 21 F.3d 590, 594
(4th Cir. 1994).

The Plaintiff appears to claim that the Administrative Defendants
violated his due process rights by informing prisoners via an electronic memo
that there would be no more recreational yard exercise or religious services,
and that Alexander CI would be treated as a total segregation institution.

[Doc. 16 at 11]. Assuming arguendo that the conditions at issue are
adequately harsh and atypical, the Plaintiff has not plausibly alleged that a
law or procedure created a liberty interest in their avoidance, or that any

Defendant failed to provide him with the required process before those
conditions were imposed. See Prieto v. Clarke, 780 F.3d 245, 251 (4th Cir.
2015) (“harsh and atypical confinement conditions in and of themselves [do

not] give rise to a liberty interest in their avoidance”). The Court will,
therefore, dismiss Plaintiff’s Fourteenth Amendment claim on initial review
because the Plaintiff has failed to state a claim upon which relief may be

granted.
F. Pending Motions
In his Motion for Appointment of Counsel, the Plaintiff asserts that he
is unable to afford counsel; that he lacks access to a law library and has

limited knowledge of the law; that the issues in the case are complex and will
require significant research and investigation; that a trial will likely involve
conflicting testimony; and that counsel would be better able to present

evidence and cross-examine witnesses. [Doc. 17].
There is no absolute right to the appointment of counsel in civil actions
such as this one. Therefore, a plaintiff must present “exceptional
circumstances” in order to require the Court to seek the assistance of a

private attorney for a plaintiff who is unable to afford counsel. Miller v.
Simmons, 814 F.2d 962, 966 (4th Cir. 1987). The Plaintiff has failed to
demonstrate the existence of exceptional circumstances that would warrant

the appointment of counsel and, therefore, this Motion will be denied.
In his “Motion for Court’s Order Response to Complaint,” the Plaintiff
asks the Court to “respond” to his Complaint. [Doc. 19]. The Court construes
the Plaintiff's motion as a request for an initial review of his Complaint. As

an initial review has now been conducted, the Motion is denied as moot.
IV. CONCLUSION
For the reasons stated herein, the Plaintiffs Second Amended
Complaint is dismissed. The Court will dismiss this action with prejudice
because the Plaintiff has already been allowed to amend his complaint and
he has failed to state a claim for relief. See Green v. Wells Fargo Bank, N.A.,
790 F. App’x 535, 536 (4" Cir. 2020).
ORDER
IT IS, THEREFORE, ORDERED that:
1. The Second Amended Complaint [Doc. 16] is DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
2. The Plaintiff's Motion for Appointment of Counsel [Doc. 17] is DENIED.
3. The Plaintiff's “Motion for Court’s Order Response to Complaint” [Doc.
19] is DENIED AS MOOT.
Signed: April 24, 2023
IT IS SO ORDERED.
ie ee
Chief United States District Judge AS
16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10259675. Public record. Not legal advice.