The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:22-cv-00164-MR
MARLON BARTLETT, )
)
Plaintiff, )
)
vs. )
)
) ORDER
FNU MILLER, et al., )
)
Defendants. )
___________________________ )
THIS MATTER is before the Court on initial review of Plaintiff’s
Amended Complaint [Doc. 23], filed under 42 U.S.C. § 1983, after remand
from the Court of Appeals for the Fourth Circuit to allow Plaintiff to amend
his Complaint [Doc. 20]. See 28 U.S.C. §§ 1915(e)(2); 1915A.
I. BACKGROUND
Pro se Plaintiff Marlon Bartlett (“Plaintiff”) is a prisoner of the State of
North Carolina currently incarcerated at Avery/Mitchell Correctional
Institution in Spruce Pine, North Carolina. On August 22, 2022, Plaintiff filed
a Complaint under 42 U.S.C. § 1983 based on events he alleges occurred
at Mountain View Correctional Institution (“Mountain View”), also in Spruce
Pine. [Doc. 1]. Plaintiff named as Defendants: (1) FNU Miller, identified as
a Sergeant at Mountain View; (2) William Wise, identified as a Lieutenant at
Mountain View; and (3) Dexter Gibbs, identified as an Assistant Warden at
Mountain View. [Id. at 1-2].
Plaintiff’s Complaint failed initial review because Plaintiff failed to state
a claim upon which relief could be granted against any Defendant. [Doc. 9].
The Court allowed Plaintiff 30 days from October 4, 2022 to file an amended
complaint in accordance with the Court’s initial review Order.1 [Doc. 9]. The
Court admonished Plaintiff that any amended Complaint would supersede
the original Complaint and that “[p]iecemeal amendment [would] not be
permitted.” [Id. at 8]. On November 15, 2022, 26 days after the Clerk
remailed the Order to Plaintiff, the Court dismissed this action without
prejudice for Plaintiff’s failure to timely amend his Complaint. [Doc. 11].
Plaintiff appealed the dismissal of his Complaint [Doc. 17], and the Fourth
Circuit vacated the Court’s Order dismissing Plaintiff’s Complaint and
remanded the case to allow Plaintiff to amend his Complaint [Doc. 20].
Now before the Court is Plaintiff’s Amended Complaint.2 [Doc. 23].
Plaintiff again names Miller, Wise, and Gibbs as Defendants in their
1 The Clerk mailed the Court’s Order to the wrong address, and, on October 20, 2022, it
was resent to the Plaintiff at the correct address. [10/20/2022 Docket Entry].
2 The Court notes that Plaintiff mailed his Amended Complaint to “309 U.S. Courthouse
Bldg.[;] 100 Otis Street.” [Doc. 23-1]. It was delivered to the local county courthouse and
forwarded to this Court. [See Doc. 23-2]. Plaintiff is admonished that the address for this
Court’s Clerk Office is “100 Otis Street, Room 309.”
individual capacities only. [Id. at 1-3]. Plaintiff alleges as follows.
On October 19, 2021, at approximately 10:30 p.m., Officer Hamilton
approached Plaintiff and told Plaintiff he was getting an infraction for being
in another offender’s cell. Hamilton told Plaintiff “to go lock down” in his cell,
but then changed his mind and told Plaintiff to go to the “core area.”
Defendant FNU Miller and three other officers were there waiting for the
Plaintiff. Defendant Miller directed Plaintiff to go to the canteen hallway to
be handcuffed. After Plaintiff told Officer Hamilton that he did not have
anything sharp in his pockets, Defendant Miller told Plaintiff “to shut [his] f-
ing mouth” and started to yell. The other officers had Plaintiff “pinned to the
wall” and “began to ruff [sic] [him] up and push [him] into the wall.” [Id. at 5].
Meanwhile, Defendant Miller was still yelling at Plaintiff to stop resisting.
Plaintiff became “very scarde, turning [his] head in fear of what was going to
happen to [him] because [he] was not resisting. Then [he] was sprayed an
taking to RHU.” [Id. (errors uncorrected)]. Plaintiff makes no allegations
against Defendants Wise or Gibbs and fails to allege who “sprayed” him.
[See id.].
Plaintiff claims that his Eighth Amendment right to be free from the
excessive use of force was violated. [Doc. 23 at 3]. Plaintiff also purports to
state a claim for “failure to punish.”3 [Id.]. Plaintiff alleges that he has
suffered various physical injuries. [Id. at 6]. For relief, Plaintiff seeks
$26,000.00. [Id.].
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.
3 In dismissing Plaintiff’s purported failure to punish claim on initial review of his original
Complaint, the Court advised Plaintiff that he “has no constitutional right to have an officer
allegedly responsible for his injuries internally punished.” [Doc. 9 at 7]. As such, the
Court declines to further address this claim.
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).
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). 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 excessive force 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.
Here, Plaintiff alleges that unidentified officers roughed him up and
pushed him into a wall, even though he was not resisting. He also alleges
that an unidentified officer “sprayed” him. Plaintiff makes no allegations
against Defendants Wise or Gibbs. Taking Plaintiff’s allegations as true and
giving him the benefit of every reasonable inference, he has nonetheless
failed to state a claim for relief. Plaintiff does not identify which Defendants
or other individuals roughed him or pushed him against a wall. To establish
liability under 42 U.S.C. § 1983, a plaintiff must show that the defendants
“acted personally” to cause the alleged violation. See Vinnedge v. Gibbs,
550 F.2d 926, 928 (4th Cir. 1977) (citation omitted). Even if he had identified
these individuals, his allegations in this regard are insufficient to state an
Eighth Amendment excessive force claim in any event. Plaintiff also fails to
identify which Defendant “sprayed” him. While the Court may infer that
Plaintiff was sprayed with pepper spray, and not some other substance, the
Court cannot recognize a claim where Plaintiff fails to allege who was
responsible for the conduct. As such, Plaintiff has again failed to state a
claim for relief against any Defendant. Because Plaintiff failed to amend his
Complaint in accordance with the Court’s Order and has otherwise properly
failed to state a claim for relief, the Court will dismiss this action with
prejudice. See Green v. Wells Fargo Bank, N.A., 790 Fed. App’x 535, 536
(4th Cir. 2020).
IV. CONCLUSION
For the reasons stated herein, the Court will dismiss Plaintiff's
Amended Complaint with prejudice.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiffs Amended Complaint
[Doc. 23] is DISMISSED with prejudice in accordance with the terms of this
Order for Plaintiff's failure to state a claim for relief.
The Clerk is respectfully instructed to terminate this action.
IT IS SO ORDERED.
Signed: August 18, 2023
ie ee
Chief United States District Judge AS