Williams v. Kemp

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:23-cv-00418-MR-DCK

JAMES WILLIAMS, )

)

Plaintiff, )

)

vs. ) ORDER

)

)

JASON KEMP, et al., )

)

Defendants. )

________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s

Complaint [Doc. 1], pursuant to 28 U.S.C. §§ 1915A and 1915(e); Plaintiff’s

Motion for Appointment of Counsel [Doc. 3]; and Plaintiff’s Motion

Requesting Leave to Amend Complaint [Doc. 9]. Plaintiff is proceeding in

forma pauperis. [Docs. 2, 7].

I. PROCEDURAL HISTORY

On November 28, 2007, Plaintiff James Williams (“Plaintiff”) pleaded

guilty in the District Court for the District of South Carolina to one count of

armed bank robbery and aiding and abetting the same under 18 U.S.C. §§

2113(a), 2113(d), and 2 and one count of using and possessing a firearm in

furtherance of count one, a crime of violence, and aiding and abetting the

same, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. [Criminal Case No.

6:07-1207 (D.S.C.), Docs. 28, 48]. He was sentenced to a total term of

imprisonment of 125 months and a term of supervised release of five (5)

years. [Id., Doc. 82]. On October 25, 2017, Plaintiff’s supervised release

was revoked for violations of the conditions of his release and Plaintiff was

sentenced to a term of imprisonment of one month and a term of supervised

release of four (4) years and 11 months. [Id., Doc. 171]. On January 9,

2019, jurisdiction over Plaintiff’s supervised release was transferred to this

District. [Criminal Case No. 3:19-cr-00068-MOC-SCR-1 (“CR”), Doc. 1]. On

April 5, 2019, District Judge Max Cogburn modified the terms of Plaintiff’s

conditions of supervised release, in pertinent part, as follows:

The defendant shall submit his/her person, property,

house, [and] residence … to a search conducted by

a United States Probation Officer and such other law

enforcement personnel as the probation officer may

deem advisable, without a warrant. The defendant

shall warn any other occupants that such premises

may be subject to searches pursuant to this

condition.

[CR Doc. 2 at 1]. This modification conformed Plaintiff’s conditions of

supervised release to those standard in this District. [See id. at 2]. Plaintiff’s

supervised release has twice since been revoked for various violations of his

supervised release conditions. [CR Docs. 17, 28; see CR Docs. 7, 20]. The

first such Judgment, in part, recites verbatim the April 5, 2019 modification.

[See CR Doc. 17 at 3]. The second such Judgment, which was entered on

October 29, 2021, provides that:

The defendant shall submit to a search if the

Probation Officer has a reasonable suspicion that the

defendant has committed a crime or a violation of a

condition of supervised release. Such a search may

be conducted by a U.S. Probation Officer, and such

other law enforcement personnel as the probation

officer may deem advisable, without a warrant or the

consent of the defendant. Such a search may be of

any place where evidence of the above may

reasonably be expected to be found, including

defendant’s person, property, house, residence,

vehicle, communications or data storage devices or

media or office.

[CR Doc. 28 at 3]. As such, pursuant to this modification, a Probation Officer

may conduct a warrantless search only if he has “a reasonable suspicion

that the defendant has committed a crime or a violation of a condition of

supervised release” and only of “any place where evidence of the above may

reasonably be expected to be found.” [Id.].

On March 17, 2022, the Court again modified the terms of Plaintiff’s

supervised release, ordering home detention and location monitoring,

because Plaintiff was “in noncompliant status due to ongoing drug use and

failure to establish stable and verifiable employment.” [CR Doc. 30 at 2].

Plaintiff had tested positive for marijuana and cocaine and failed to secure

stable employment. [Id.]. In seeking the modification, United States

Probation Officer (USPO) Stoltenberg stated, “We will continue to monitor

the defendant closely and report additional noncompliance to the Court as

required.” [Id.]. Plaintiff agreed to the modification. [Id.].

On March 31, 2022, USPO Stoltenberg petitioned the Court to revoke

Plaintiff’s supervised release and issue a warrant for his arrest based on the

previous positive drug tests and a Grade A new law violation discovered that

day. [CR Doc. 31 at 2]. In the Petition, Stoltenberg reported that:

During a warrantless search operation of the

defendant’s reported residence on 03/31/2022, the

defendant possessed with the intent to distribute

approximately 14 grams of cocaine hydrochloride

and approximately seven (7) grams of “crack”

cocaine. These items were found in the defendant’s

bedroom, along with digital scales and other drug

paraphernalia. The defendant provided an audio

recorded post-Miranda statement indicating that all

items of contraband found in his bedroom belonged

to him. The defendant later admitted to [Supervising

USPO (SUSPO)] J. Kemp that he has sold small

amounts of “crack” cocaine and powder cocaine

during his term of supervised release to help earn

money to start a business.

[Id.]. The revocation and detention hearings were held on June 6, 2022.

[See CR Doc. 39 at 2: Revocation Hearing Tr.]. Plaintiff requested a

preliminary hearing on his supervised release violation. [See id. at 2].

SUSPO Jason Kemp testified. [See id. at 3]. Kemp testified that he was

Plaintiff’s supervising probation officer and that he “also participated in a

warrantless search operation, which was in response to some

noncompliance.” [Id.]. Kemp testified that Plaintiff’s marijuana and cocaine

use was “part of [their] reason for conducting a warrantless search.” [Id. at

4-5, 10]. Kemp also testified that, “in addition to the elicit drug use on the

positive urine screens, the police report had come out where the defendant

was a victim in a household that had been shot. A round of ammunition had

come through a window when he was in the residence. He wasn’t

cooperative with police, and he failed to report that police contact, so that

was another factor as to why we were conducting a warrantless search.” [Id.

at 12]. Kemp testified that, in addition to the cocaine, crack cocaine, and

drug paraphernalia, “another bag with a bigger amount that Mr. Williams said

was baking soda” was also found in Plaintiff’s bedroom during the search.

[Id. at 18].

Kemp also testified that, after the Plaintiff was Mirandized, he admitted

on video to selling small amounts of cocaine and that “there would be soft

and hard found in his bedroom.” [Id. at 8, 14]. At the time, Plaintiff admitted

that he possessed 14 grams of powder cocaine and five to six grams of crack

cocaine. [Id. at 15]. Later the same day, in a phone call to his wife’s cell

phone from the Mecklenburg County Jail (the “Jail”), Plaintiff admitted to

possessing six to seven grams of crack cocaine. [Id. at 9, 15]. Kemp

testified that, based on Plaintiff’s admissions, the Petition alleged that

Plaintiff possessed seven (7) grams of crack cocaine and 14 grams of

powder cocaine. [Id. at 18-19]. Kemp testified that Plaintiff was charged with

trafficking in state court because the Charlotte Mecklenburg Police Officers

assisting with the operation charged Plaintiff with trafficking based on the

“total amounts of substance that were found,” which “included the

approximately 55-gram bag of white powder they believed to be cocaine.”

[Id. at 19]. Kemp testified that the Probation Office did not charge Plaintiff

with that additional amount because “[they] didn’t know what the substance

was” and “[they] relied on Mr. Williams’s statements about the crack cocaine

and powder cocaine for sure they had found in the residence.” [Id. at 19].

The Court concluded that probable cause existed to support the charges in

the Petition and ordered that Plaintiff be detained.1 [Id. at 23, 26].

On July 13, 2023, Plaintiff filed the instant Complaint pursuant, in part,

to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). [Doc. 1 at 3]. Plaintiff names

1 On August 21, 2023, after denying Plaintiff’s motion to suppress evidence from the

allegedly illegal search, District Judge Max Cogburn found that Plaintiff had committed

the alleged violations and revoked Plaintiff’s supervised release. [CR 8/21/2023 Docket

Entry; CR 8/21/2023 Oral Order; see CR Doc. 48]. The Court sentenced Plaintiff to a

term of imprisonment of 24 months and a term of supervised release of 24 months on

these violations. [CR Doc. 49].

SUSPO Kemp, USPO Stoltenberg, and Mecklenburg County Sheriff Gary

McFadden as Defendants in this matter, all in their individual and official

capacities. [Id. at 2-3]. Plaintiff asserts two wholly unrelated claims in his

Complaint. Plaintiff purports to state claims against Defendants Kemp and

Stoltenberg related to and arising from the allegedly illegal search they

performed at Plaintiff’s residence and against Defendant McFadden related

to Jail policy requiring that detainees wear “shower shoes” when outside their

cells.

As to Defendants Kemp and Stoltenberg, Plaintiff alleges as follows.

On March 31, 2022, Defendants Kemp and Stoltenberg, along with six other

USPOs, arrived at Plaintiff’s home “ostensibly to conduct an [sic] urine

analysis.” [Id. at 14]. After Defendant Stoltenberg and another officer

conducted the urinalysis and a cursory search of the upstairs, they invited

the six other officers inside the home “to search every room in the home,

including the private bedroom which was used exclusively by [Plaintiff’s]

brother.” [Id. at 15]. “Apparently, the reason for their visit was due to an

incident which occurred eight days prior. Plaintiff drove to a friend’s home to

give her a ride to work. While there, a gun was fired and the police were

called. The Plaintiff was not involved or even implicated in the shooting,

however, an unknown witness allegedly gave a statement to a police officer

accusing Plaintiff of selling drugs.” [Id. at 15 (errors uncorrected)]. As a

result of the search, the USPOs found “four plastic bags containing illegal

contraband, miscellaneous drug paraphernalia, two handguns (which were

legally purchased and registered to Plaintiff’s brother[)], and other items.”

[Id. at 15]. Plaintiff was arrested and charged in state court for possession

of drug paraphernalia, cocaine trafficking, possession with intent to distribute

marijuana, and maintaining a dwelling for keeping and selling controlled

substances. [Id. at 16]. These charges were ultimately dismissed. [Id.].

While the federal Petition seeking a warrant for Petitioner’s arrest

stated the drug amounts as 14 grams of powder cocaine and seven grams

of crack cocaine, “[a]t some point later, the weight of the cocaine was

changed to 90.9 grams and 32.2 grams of ‘crack’ cocaine as reflected in the

criminal complaints proffered by [a] Mecklenburg police officer [ ] and a third

document presented to the courts stated 58.7 grams of cocaine.” [Id. at 17].

“These three different amounts clearly support ‘tampering’ with evidence

and/or falsified documents.” [Id.]. That is, Defendants Kemp and/or

Stoltenberg forwarded “fabricated information” to prosecutors and Plaintiff

“suffered a deprivation of life, liberty, or property as a result.” [Id.].

Defendant Kemp “subsequently testified under oath that he did not, in fact,

possess [an audio] recording which substantiates [that] he knowingly

submitted a falsified document to the court.” [Id.]. Ultimately, the state

prosecution terminated in Plaintiff’s favor on August 29, 2022, because “no

probable cause supported the continued confinement.” [Id. at 19].

Plaintiff alleges that Defendants Kemp and Stoltenberg “lacked

reasonable suspicion to execute a warrantless search and caused Plaintiff

to be detained and arrested absent probable cause in violation of his Fourth

Amendment rights.” [Id. at 14]. Plaintiff claims that Defendants exceeded

their jurisdiction by searching every room in the home, including a private

bedroom, without “consent from anyone in the home.” [Id. at 14]. Plaintiff

claims that Defendants violated his Fourteenth Amendment rights by

“depriv[ing] [him] of his right to a fair trial by withholding material exculpatory

evidence as to the location where evidence was found [bedroom used

exclusively by brother].” [Id. at 20]. Plaintiff also claims that Defendants “and

other un-named probation officers agreed to deprive” Plaintiff of his civil

rights under the Fourth and Fourteenth Amendments. [Id. at 21].

Plaintiff purports to state claims against Defendants Kemp and

Stoltenberg for unlawful search and seizure, deprivation of due process,

“falsifying” and “fabricating” evidence, malicious prosecution, “criminal

conspiracy to violate Plaintiff’s rights,”2 and “civil rights conspiracy … in

violation of the F.T.C.A., Bivens, 42 U.S.C. § 1983, and N.C. state law.” [Id.

at 3, 13].

For injuries, Plaintiff alleges that he “was unlawfully detained awaiting

state charges until charges were ultimately dismissed” [id. at 27], and, at the

time of his Complaint, he was awaiting disposition of his supervised release

violations, which have since been adjudicated [see id.]. For relief, Plaintiff

seeks monetary relief, including punitive damages. [Id.].

As to Defendant McFadden, Plaintiff alleges the following. Jail policy

requires detainees to wear Jail-issued shower shoes anytime detainees are

outside their cells. [Doc. 1 at 23]. These shower shoes are cheaply made

and have “zero traction” on the soles. The flooring inside the POD is

“smooth, slick tile on top of concrete” and “any amount of liquid on this floor

surface creates an untenable situation” for those trying to walk in shower

shoes. [Id.]. On May 5, 2022, at approximately 10:00 a.m., while detained

at the Jail, Plaintiff walked down the stairs from the upper deck and stepped

off the stairs onto the tile floor. Unbeknownst to Plaintiff, there were small

drops of water or some other liquid on the floor, causing Plaintiff to “lose [sic]

2 The Court notes that there is no civil cause of action for criminal conspiracy and this

claim will not be addressed further.

his footing and hitting his head on the concrete floor.” [Id. at 22]. Plaintiff

was transported to Carolina Medical for treatment where they determined

Plaintiff suffered “no significant internal injuries.” [Id.]. Other detainees have

suffered similar such falls, one as recently as July 4, 2023. [Id. at 24, 28].

Plaintiff purports to state claims against Defendant McFadden in his

official capacity under the Eighth and Fourteenth Amendments. [Id. at 12].

Plaintiff alleges that Defendant McFadden “has acted with a deliberate

indifference toward a condition that posed a significant risk of serious harm”

and “was and is aware of facts from which he could draw an inference that a

substantial risk of harm exist[s].” [Id. at 23-24].

Plaintiff also purports to state claims against Defendant McFadden in

his official capacity based on his “sole statutory responsibility for care and

custody of the inmates at the county jail,” [id. at 13 (citing N.C. Gen. Stat. §

162-22)3], and “the surety on his official bond for acts of negligence in the

performance of official duties” pursuant to N.C. Gen. Stat. § 58-76-5,4 [id.].

Plaintiff also alleges that Defendant McFadden’s negligence resulted in

3 N.C. Gen. Stat. § 162-22 provides that, “[t]he sheriff shall have the care and custody of

the jail in his county; and shall be, or appoint, the keeper thereof.”

4 N.C. Gen. Stat. § 58-76-5 provides, in pertinent part, that, “[e]very person injured by the

neglect, misconduct, or misbehavior of office of … sheriff … may institute a suit or suits

against said officer or any of them and their sureties upon their respective bonds for the

due performance of their duties in office in the name of the State.”

damages to the Plaintiff.5 [Id. at 24]. Plaintiff asks the Court to exercise

supplemental jurisdiction over his state law claim “if this court determines

[Plaintiff’s] claim does not rise to the level of a constitutional violation.” [Id. at

25].

For injuries, Plaintiff alleges he suffered “injuries to the back of his head

and still suffers headaches he believes [were] caused by said injuries,” [Id.

at 5; see id. at 26], as well as humiliation by officers commenting on Plaintiff’s

fall [id. at 5]. For relief on these claims, Plaintiff seeks declaratory and

monetary relief, including punitive damages. [Id. at 5, 26].

II. ANALYSIS

As a preliminary matter, Plaintiff’s Complaint is subject to dismissal for

bringing two unrelated claims against unrelated defendants in a single

action. This is expressly prohibited. See Fed. R. Civ. P. 18(a), 20(a)(2);

George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (noting that “[u]nrelated

claims against different defendants belong in different suits,” to prevent

prisoners from dodging the fee payment or three-strikes provisions in the

Prison Litigation Reform Act). “For example, Plaintiff may not pursue claims

5 It is not clear whether Plaintiff purports to state a separate ordinary negligence claim

against Defendant McFadden or claims only that N.C. Gen. Stat. § 162-22 created a duty

of care allegedly breached by Defendant McFadden. The Court will address both such

contentions.

of retaliation involving one set of defendants while simultaneously pursuing

claims for deliberate indifference to serious medical needs against another

set of defendants.” Thomas v. Davey, No. 1:16cv925, 2017 WL 2691824, at

*2 (E.D. Cal. June 22, 2017). A plaintiff may only bring a claim against

multiple defendants when (1) the claim arises out of the same transaction or

occurrence, or series of transactions and occurrences; and (2) there are

common questions of law or fact. Fed. R. Civ. P. 20(a)(2). As such, Plaintiff’s

claims against Defendants Kemp and Stoltenberg may not be litigated in the

same action as his claims against Defendant McFadden. Nonetheless,

because Plaintiff’s claims against both sets of Defendants fail in any event,

the Court individually addresses them here.

A. Defendants Kemp and Stoltenberg

Plaintiff purports to state causes of action against Defendants Kemp

and Stoltenberg under the Federal Tort Claims Act (FTCA), 42 U.S.C. §

1983, and Bivens.6 Plaintiff also asserts that Defendants are liable for “civil

6 Plaintiff also alleges that Defendants’ conduct violated North Carolina state law. [Doc.

1 at 13]. It is unclear what state law Plaintiff contends Defendants violated. While the

fruits of Defendants’ search yielded evidence that resulted in state law charges,

Defendants were not involved in that decision or any state prosecution of the Plaintiff.

Moreover, any purported claim of malicious prosecution relative to the probation Petition

fails because those proceedings did not terminate in Plaintiff’s favor. Regardless, the

Court declines to address this claim any further.

rights conspiracy,” which the Court will construe as a claim under 42 U.S.C.

§ 1985. The Court will address these claims in turn.

1. FTCA

Without elaboration, Plaintiff contends that Defendants’ conduct

violated the FTCA. The FTCA creates an exception to the application of

sovereign immunity, which generally shields the United States from lawsuits.

The FTCA generally authorizes suits against the United States for damages

for personal injuries or property caused by the negligent or wrongful acts or

omissions of an employee of the United States while acting within the scope

of his office or employment. See 28 U.S.C. §§ 1346(b), 2671. As a

jurisdictional prerequisite, however, a plaintiff must first submit the claim to

the appropriate federal agency within two years of accrual of the cause of

action and receive a final denial of the claim by the reviewing agency. 28

U.S.C. §§ 2401(b), 2675. Even if Plaintiff had named the United States as a

Defendant in this matter, which he did not, he has failed to allege or show

that he has received final administrative denial of his claim. Plaintiff’s FTCA

claim, therefore, plainly fails, and will be dismissed.

2. Section 1983

Section 1983 provides relief for alleged constitutional violations

committed by persons acting under color of state law. 42 U.S.C. § 1983.

Here, Defendants Kemp and Stoltenberg acted pursuant to federal law. Any

claims Plaintiff might have against these Defendants for alleged

constitutional violations may be brought under Bivens, if at all. As such, any

claim Plaintiff purports to advance under § 1983 fails and will be dismissed.

3. Section 1985

To state a claim under § 1985, a plaintiff must allege “concrete facts”

showing that defendants entered a conspiracy which deprived the plaintiff of

his civil rights. Francis v. Giacomelli, 588 F.3d 186, 196-97 (4th Cir. 2009).

Courts reject “section 1985 claims whenever the purported conspiracy is

alleged in a merely conclusory manner, in the absence of concrete

supporting facts.” Williams, at *5 (quoting Simmons v. Poe, 47 F.3d 1370,

1377 (4th Cir. 1995)). The Fourth Circuit has “rarely, if ever, found that a

plaintiff has set forth sufficient facts to establish a section 1985 conspiracy.”

Simmons, 47 F.3d at 1377. To allege a conspiracy, a party must show that

two or more persons acted in concert to commit an unlawful act or to commit

a lawful act by unlawful means. See id. at 1376. Further, “a party must show

an agreement or meeting of the minds between parties to inflict a wrong or

injury upon another that results in damage.” Williams, at *5 (citations

omitted). A plaintiff must also show harm resulting from the alleged

conspiracy. Id. (citations omitted).

Taking Plaintiff’s allegations as true and drawing reasonable

inferences therefrom in Plaintiff’s favor, Plaintiff has failed to allege a

conspiracy to deprive his civil rights. Plaintiff alleges only that Defendants

“and other un-named probation officers agreed to deprive Plaintiff of his right

to be free from unreasonable searches and seizures, malicious prosecution,

and deprivation of liberty without due process of law.” [Doc. 1 at 21]. This

is plainly not enough to state a claim under Section 1985. The Court will

dismiss this claim on initial review.

4. Bivens

A Bivens action is the judicially-created counterpart to 42 U.S.C. §

1983, and allows an action for money damages to be brought against

individuals acting under the color of federal law for injuries caused by their

unconstitutional conduct. Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 395-97 (1971). Bivens’ core premise is

to deter individual officers’ unconstitutional acts. See Correctional Servs.

Corp. v. Malesko, 534 U.S. 61 (2001). “Because vicarious liability is

inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each

Government-official defendant, through the official’s own individual actions,

has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

Bivens claims are not actionable against the United States, federal agencies,

or public officials acting in their official capacities. See FDIC v. Meyer, 510

U.S. 471, 475, 484-86 (1994); Dao v. Chao, 306 F.3d 170, 184 (4th Cir.

2002) (“[A] Bivens action does not lie against either agencies or officials in

their official capacity.”) (citing Meyer, 510 U.S. at 484-86).

Plaintiff’s Bivens claim fails initial review. Plaintiff’s official capacity

claims against Defendants Kemp and Stoltenberg fail as a matter of law.

Meyer, 510 U.S. at 475, 484-86. As to Plaintiff’s individual capacity claims,

they are barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the

United States Supreme Court held as follows:

[I]n order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness

would render a conviction or sentence invalid, a §

1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a

state tribunal authorized to make such determination,

or called into question by a federal court’s issuance

of a writ of habeas corpus, 28 U.S.C. § 2254. A claim

for damages bearing that relationship to a conviction

or sentence that has not been so invalidated is not

cognizable under § 1983. Thus, when a state

prisoner seeks damages in a § 1983 suit, the district

court must consider whether a judgment in favor of

the plaintiff would necessarily imply the invalidity of

his conviction or sentence; if it would, the complaint

must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has

already been invalidated. But if the district court

determines that the plaintiff’s action, even if

successful, will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff,

the action should be allowed to proceed, in the

absence of some other bar to the suit.

Id. at 486-87 (footnotes omitted; emphasis added); see Poston v. Shappert,

22 Fed. App’x 301, at *1 (4th Cir. 2007) (applying Heck rationale to bar claims

for damages under § 1983 and Bivens). Heck also applies to probation and

parole violation proceedings. Anderson v. Patterson, No. 6:16-cv-00761-

MGL-JDA, 2016 WL 11410926, at *5 (D.S.C. Sept. 13, 2016) (citation

omitted). Plaintiff’s claims here derive from an allegedly unlawful search that

resulted in Plaintiff being charged with two supervised release violations. On

August 21, 2023, the Court denied Plaintiff’s motion in his criminal

proceeding to suppress evidence of this allegedly unlawful search and found

Plaintiff guilty of the supervised release violations. Accordingly, given the

nature of Plaintiff’s allegations, a judgment in his favor would necessarily

imply the invalidity of the conviction or sentence on the supervised release

violations in the underlying criminal matter. The Court’s record confirms that

Plaintiff’s conviction and sentence remain undisturbed. See Wiley v.

Buncombe County, No. 1:10cv181, 2011 WL 3323152, at *4 (W.D.N.C. Aug.

2, 2011) (noting that court may take judicial notice of matters of public

record). Therefore, Plaintiff’s Bivens claim is barred by Heck and will be

dismissed.7

Moreover, even if Plaintiff could show a constitutional violation

redressable under Bivens, which is unlikely, Defendants Kemp and

Stoltenberg would likely be protected from liability under qualified immunity

under the circumstances here in any event. See Gant v. United States

Probation Office, 994 F.Supp. 729, 734-35 (S.D. W.Va. Feb. 13, 1998)

(finding that, even if plaintiff had stated a Bivens claim, probation officer

defendant who acted reasonably in enforcing a court order was entitled to

qualified immunity); Ray v. Picket, 734 F.2d 370 (8th Cir. 1984) (holding

probation officers were entitled to qualified immunity for their roles in

petitioning for probation revocation).

As such, Plaintiff has failed to state any claim upon which relief may

be granted against Defendants Kemp and Stoltenberg and his claims against

them fail initial review.

B. Defendant McFadden

Plaintiff purports to state claims against Defendant McFadden in his

official capacity related to injuries Plaintiff suffered when he slipped on water

7 The Court notes that to the extent that Plaintiff seeks to hold Defendants Kemp and

Stoltenberg responsible for the decision of state court prosecutors to charge Plaintiff with

violations of North Carolina law based on evidence recovered by these Defendants, any

such claims fail. The record in Plaintiff’s criminal proceeding plainly undermines Plaintiff’s

frivolous allegations of falsifying and fabricating evidence by these Defendants.

while walking in his shower shoes.8 Plaintiff claims that a “known dangerous”

Jail policy requiring detainees to wear shower shoes outside their cells is

deliberately indifferent “toward a condition that posed a significant risk of

serious harm.” Plaintiff also claims that Defendant McFadden was negligent

and breached a duty of care he owed to the Plaintiff under N.C. Gen. Stat. §

162-22.

Because the Plaintiff was a pre-trial detainee at the relevant times, his

deliberate indifference claims are properly brought under the Fourteenth

Amendment's Due Process Clause rather than the Eighth

Amendment. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983).

However, the Fourth Circuit has long applied the Eighth Amendment

deliberate indifference standard to pretrial detainees' deliberate indifference

claims. See Moss v. Harwood, 19 F.4th 614, 624 n.4 (4th Cir. 2021).

“Deliberate indifference is a very high standard – a showing of mere

negligence will not meet it.” Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.

1999). “An officer is deliberately indifferent to a substantial risk of harm to a

detainee when that officer ‘knows of and disregards’ the risk.” Parrish, 372

8 In his Complaint, Plaintiff checked the pre-printed boxes reflecting that he was suing

Defendant McFadden in his individual and official capacities. [See Doc. 1 at 3]. Plaintiff,

however, made no allegations in his Complaint against Defendant McFadden supporting

individual capacity liability. [See Doc. 1 at 3, 12, 13]. As such, the Court will dismiss any

purported individual capacity claims against Defendant McFadden.

F.3d at 302 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). To be

liable under this standard, “the 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.” Farmer, 511 U.S. at 837. Thus,

deliberate indifference requires a showing that a defendant “actually knew of

and disregarded a substantial risk of serious injury to the detainee….”

Young v. City of Mount Ranier, 238 F.3d 567, 575-76 (4th Cir. 2001). “As a

general matter, ‘[o]nly governmental conduct that shocks the conscience is

actionable as a violation of the Fourteenth Amendment.’” Parrish ex rel. Lee

v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (quoting Young, 238 F.3d at

574 (internal quotation and citation omitted)).

Taking Plaintiff’s allegations as true and giving him the benefit of every

reasonable inference, Plaintiff has not stated a claim for deliberate

indifference against Defendant McFadden in his official capacity based on

the shower shoe policy. While requiring detainees to wear shower shoes

outside their cells may increase the risk of detainees slipping and falling on

slippery surfaces in the Jail, this policy does not rise to the level of deliberate

indifference and is nonetheless undoubtedly informed by countervailing

safety and security concerns. This claim will be dismissed.

The Court declines to exercise supplemental jurisdiction over Plaintiff’s

negligence claims, including Plaintiff’s claim under N.C. Gen. Stat § 162-22

and against the surety on the Sheriff’s official bond, because no federal claim

has passed initial review. See Artis v. Dist. Of Columbia, 138 S.Ct. 594, 595

(2018) (when a district court dismisses all claims independently qualifying for

the exercise of federal jurisdiction, it “ordinarily dismiss[es] all related state

claims.”); 28 U.S.C. § 1367(c)(3). Accordingly, these claims are also

dismissed.

The Court will dismiss Plaintiff’s Complaint against Defendant

McFadden without prejudice only to Plaintiff pursuing his negligence claims

in state court, if at all. The Court will dismiss Plaintiff’s Complaint against

Defendants Kemp and Stoltenberg with prejudice because amendment

would be futile.

IV. PLAINTIFF’S MOTIONS

Also pending are Plaintiff’s motion for appointment of counsel and

motion for leave to amend his Complaint. [Docs. 3, 9]. The Court will deny

Plaintiff’s motion for counsel as moot. As for Plaintiff’s motion to amend,

Plaintiff seeks to add Austin B. Kennedy, identified as an Officer with the

Charlotte Mecklenburg Police Department, as a Defendant in this matter.

[Doc. 9]. Plaintiff contends that Kennedy “presented false or fabricated

documents to the grand jury” in Plaintiff’s state criminal proceeding. [Id. at

1]. The Court will deny this motion. Plaintiff failed to include a proposed

Amended Complaint with his motion and Plaintiff cannot amend his

Complaint piecemeal. Moreover, Plaintiff’s Complaint is being dismissed for

the reasons stated in this Order. If Plaintiff wishes to proceed against Mr.

Kennedy, he may do so in a separate action.

V. CONCLUSION

For the reasons stated herein, the Court will dismiss this action with

prejudice, except for Plaintiff’s claims against Defendant McFadden, which

are dismissed without prejudice to Plaintiff pursuing such claims in state

court.

ORDER

IT IS, THEREFORE, ORDERED that this action [Doc. 1] is

DISMISSED with prejudice on initial review under 28 U.S.C. §§ 1915A and

1915(e), except for Plaintiff’s claims against Defendant McFadden, which is

DISMISSED without prejudice in accordance with the terms of this Order.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of

Counsel [Doc. 3] and Plaintiff’s Motion Requesting Leave to Amend

Complaint [Doc. 9] are DENIED.

The Clerk is respectfully instructed to terminate this action.

IT IS SO ORDERED.

Signed: August 31, 2023

5 a □□

£ Reidinger ay,

Chief United States District Judge wll

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