# Smith v. North Carolina Department of Adult Corrections

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

URL: https://www.frixlaw.com/law-library/cases/10260240

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** September 25, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10260240

## How later opinions describe it (automated extraction)

- holding that “the inadequacy of … training may serve as a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of person with whom the [subordinates] come into contact”
- noting that courts have applied Turner to ADA and Rehab Act claims
- noting that courts have applied Turner to ADA and Rehab Act claims

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:23-cv-00218-GCM

S. SHANE SMITH, )
)
Plaintiff, )
)
vs. ) ORDER
)
NORTH CAROLINA DEPARTMENT )
OF ADULT CORRECTIONS, et al. )
)
Defendants. )
__________________________________________)

THIS MATTER is before the Court on initial review of Plaintiff’s Amended Complaint
[Doc. 15]. See 28 U.S.C. §§ 1915(e) and 1915A. Plaintiff is proceeding in forma pauperis.
[Docs. 2, 8].
I. BACKGROUND
Pro se Plaintiff S. Shane Smith (“Plaintiff”) is a prisoner of the State of North Carolina
currently housed at Foothills Correctional Institution (“Foothills”) in Morganton, North Carolina.
He filed this action in the Eastern District of North Carolina on November 16, 2022, against
Defendants North Carolina Department of Adult Corrections (NCDAC); Todd Ishee, the
NCDAC Secretary; John/Jane Doe, the Americans with Disabilities Act (ADA) Coordinator; and
Teresa Jardon, the Foothills Warden, claiming that Defendants violated his rights under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act
of 1973 (“Rehab Act”). [Doc. 1]. On January 27, 2023, District Judge Terrence W. Boyle
ordered that this action be transferred to this Court because this action “relates to the alleged
failure to accommodate [Plaintiff’s] disability at Foothills,” which is in the Western District.1
[Doc. 9]. On initial review of Plaintiff’s Complaint, this Court found that Plaintiff failed to state
a claim for relief and allowed Plaintiff 30 days to amend his Complaint. [Doc. 14]. Plaintiff
timely filed an Amended Complaint [Doc. 15], which is now before the Court on initial review.
In his Amended Complaint, Plaintiff names the following Defendants: (1) the NCDAC; (2) Todd

Ishee, “Commissioner of Prisons;” (3) Teresa Jardon, Foothills Warden; (4) John Coleman,
Director of N.C. Correctional Enterprise (NCCE)2; (5) Sophia Feaster, Division ADA
Coordinator; (6) Monica Teague, Region ADA Coordinator; and (7) Deorain Carson, Facility
ADA Coordinator. [Id. at 1, 3-6]. Plaintiff purports to sue all Defendants in their individual and
official capacities. [See id. at 4-6].
Plaintiff alleges as follows. Plaintiff was born without fingers and toes and has
“extremely sensitive skin.” [Id. at 8]. He has no grip with his right hand and limited grip with
his left hand. [Id.]. On his left hand, Plaintiff has what some might mistakenly assume is a
thumb, but rather is “the root from which a thumb would extend.” [Id.]. Without toes, his

“balance is cumbersome.” [Id.]. Plaintiff is very limited in how he performs manual tasks and
even the slightest alteration in their performance causes him “excruciating physical pain and
great discomfort.” [Id.]. The appendage “that is often misidentified as a thumb is [Plaintiff’s]
primary tool” for feeding, dressing, and caring for himself, “all only if appropriately
accommodated.” [Id. at 8-9].

1 For reasons unknown to the Court, this matter was not opened as a new case in this District until August
16, 2023. [See Doc. 12].

2 Plaintiff alleges that, as Director of the NCCE, Defendant Coleman “is responsible for the
administration, operation, and supervision of all NCCE industry plants, staff and facilities; and the
promulgation and enforcement of laws, rules, regulations, policies, and practices relevant to them.” [Doc.
15 at 4-5].
Once in NCDAC custody, in or around 1993, prison officials provided Plaintiff numerous
disability accommodations and allowed Plaintiff to receive numerous items from family
members that were necessary for Plaintiff to perform simple daily tasks. [Id. at 6, 11]. After
nearly 15 years of incarceration, Plaintiff was transferred to a facility where officials “arbitrarily
took it upon [themselves] to rescind all of [his] previously approved disability accommodations.”

[Id.]. In 2007, Plaintiff filed a civil action under the ADA and Rehab Act in the Eastern District
of North Carolina, S. Shane Smith v. Theodis Beck, et al., No. 5:07-CT-3034-FL. [Id. at 11-12].
Ultimately, that action ended in a settlement agreement between the Plaintiff and the NCDAC
whereby the NCDAC agreed, among other things, to provide Plaintiff with “appropriate clothing
and assistive devices” for his disabilities and the opportunity to buy other identified items at his
own expense. [See Doc. 15-2 at 114-22]. In reaching this agreement, it was determined that the
NCCE could not provide the items that Plaintiff needed and that they would need to be
purchased from outside vendors, such as Walmart. The items included bed linens, boxer shorts,
shirt jackets, t-shirts, pants with sufficient pockets, a belt, bath towels and face cloths, crew

socks, a digital pocket radio, radio headphones, a nylon zippered notebook, an analog watch, and
rubber-gripped pens. [Doc. 15 at 13-17]. The clothing and linen items were to be made of 100%
cotton and washed only in special detergent. [Doc. 15-2 at 115-16].
In September 2015, Plaintiff filed a federal civil rights action in the Middle District of
North Carolina, S. Shane Smith v. Frank L. Perry, et al., 1:16-CV-396-TDS-LPA, which
concluded in 2021 with a settlement agreement. [Id. at 17]. After filing that action, prison
officials “all but stopped providing clothing which met [Plaintiff’s] specific disability
accommodation needs and completely stopped permitting [him] to purchase at [his] expense the
non-clothing and linen items [he] used as accommodation assistive devices.” [Id.; see id. at 18-
24]. The NCCE “has continually demonstrated it is unable or unwilling to create or provide the
clothing and linen items [Plaintiff] needed to appropriately accommodate [his] disability.” [Id. at
24]. “The change of [Plaintiff’s] clothing which accommodated [his] disability served absolutely
no penological purpose other than to harass, belittle, intimidate, and retaliate against [Plaintiff]
for the expression of [his] grievances and for [his] previous civil rights litigation.” [Id. at 24-25].

After discussing his disability needs with his housing unit’s supervisory staff, supervisory
staff informed Plaintiff that Defendant Jardon had rejected his request for accommodation. [Id.
at 25]. On June 30, 2022, after discussing his disability needs with the Foothills medical
department and obtaining a referral, Plaintiff was assessed by an occupational therapist. [Id.]. It
was determined that “the requested and previously provided items were the most appropriate
accommodation for [Plaintiff’s] unique disability.” [Id.]. Shortly after his appointment with the
occupational therapist, prison officials told Plaintiff that they were not going to implement the
occupational therapist’s recommendations. [Id.]. Thereafter, Plaintiff submitted an official
NCDAC Offender Reasonable Request for Accommodation (“ADA Request”), “pleading prison

officials to provide the various items which accommodated [Plaintiff’s] disability.” [Id.].
Defendants Teague, Feaster, and Carson denied Plaintiff’s numerous ADA Requests. [Id.].
Plaintiff has written Defendant Ishee “numerous times requesting disability
accommodation,” but Plaintiff has never met Defendant Ishee and Defendant Ishee “has never
responded or communicated with [Plaintiff]” regarding Plaintiff’s disability accommodation
needs. [Id.]. Plaintiff has never met Defendant Coleman and Defendant Coleman has never
communicated with Plaintiff regarding Plaintiff’s disability assistance needs. [Id. at 26].
Plaintiff claims that Defendants’ acts and omissions have violated his rights under the
First, Eighth, and Fourteenth Amendments and the ADA and Rehab Act. [Id. at 28-30]. Plaintiff
also purports to state a claim against Defendants Ishee, Coleman, Feaster, Teague, and Jardon for
the “failure to train and/or supervise employees,” which the Court construes under the Eighth
Amendment. [Id. at 30-31].
For injuries, Plaintiff alleges that he has suffered “physical harm, severe emotional
trauma, and loss of liberty.” [Id. at 31]. For relief, Plaintiff seeks a declaratory judgment;

monetary relief, including punitive damages; and injunctive relief, including the provision of
various clothing items, linens, personal care items, and permission to purchase other items at his
own expense, all as reasonable accommodations for his disabilities under the ADA. [Id. at 32-
33].
II. STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, the Court must review the 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, 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. 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. ADA and Rehab Act
Plaintiff alleges that Defendants have refused to accommodate his disability in violation
of the ADA and the Rehab Act. Under Title II of the ADA, “no qualified individual with a

disability shall, by reasons of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity.” 42 U.S.C. § 12132. The
ADA defines “public entity” to include “any State or local government” and “any department,
agency, … or other instrumentality of a State.” United States v. Georgia, 546 U.S. 151, 126 S.Ct.
877 (2006) (citing 42 U.S.C. § 12131(1)). “[T]his term includes state prisons.” Id. (citing
Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210, 118 S.Ct. 1952 (1998)).
To establish a prima facie case under Title II of the ADA, a plaintiff must show that: (1)
he has a disability; (2) he was either excluded from participation in or denied the benefits of
some public entity’s services, programs, or activities for which he was otherwise qualified; and

(3) such exclusion, denial of benefits, or discrimination was by reason of his disability. Miller v.
Hinton, 288 Fed. App’x 901, 902 (4th Cir. 2008) (citations omitted). States are obligated to
make “reasonable modifications” to enable the disabled person to receive the services or
participate in programs or activities. 42 U.S.C. § 12131(2). The duty of reasonable
accommodation, however, must also consider whether the institution’s actions are related to
legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254 (1987);
Tanney v. Boles, 400 F.Supp.2d 1027, 1050 (E.D. Mich. 2005) (noting that courts have applied
Turner to ADA and Rehab Act claims). A plaintiff must also establish an actual injury from any
alleged ADA or Rehab Act violation. See Rosen v. Montgomery Cty. Md., 121 F.3d 154, 158
(4th Cir. 1997).
The Rehabilitation Act provides that “no otherwise qualified individual with a disability
… shall, solely by reason of [his] disability, be excluded from participation in, be denied the
benefits of, or be subject to discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C. § 794(a). The analysis under the Rehab Act is generally the
same as under the ADA. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 214 (4th Cir.
2002). Claims under the Rehab Act, however, require a showing of discrimination “solely by
reason of” disability, 29 U.S.C. § 794(a), while under the ADA, a plaintiff must only show
discrimination “by reason of” disability, 42 U.S.C. § 12132. As such, the causation standards are
“significantly dissimilar.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d
474, 498 n.17 (4th Cir. 2005) (citation omitted). In addition, to sustain a claim under the Rehab
Act, a plaintiff must also show that the program or activity in question receives federal financial
assistance. Thomas v. The Salvation Army Southern Territory, 841 F.3d 632, 641 (4th Cir.

2016).
Neither the Rehab Act nor Title II of the ADA, however, provide for individual capacity
suits against state officials. See Barnes v. Young, 565 Fed. App’x 272, 273 (4th Cir. 2014)
(unpublished) (quoting Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir. 2001)
(collecting cases)); see Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) (there is no ADA
retaliation claim against defendants in their individual capacities); Moneyhan v. Keller, 563 Fed.
App’x 256, 258 (4th Cir. 2014) (“Neither the ADA nor the Rehabilitation Act authorizes suits for
monetary damages against Defendants in their individual capacities.”) (citation omitted). Such a
suit, therefore, may only be brought against a defendant in an official capacity. Id. As such,
Plaintiff’s individual capacity ADA and Rehab Act claims will be dismissed for Plaintiff’s
failure to state a claim for relief.
Taking Plaintiff’s allegations as true and giving him the benefit of every reasonable
inference, Plaintiff has stated claims under the ADA and Rehab Act against Defendant NCDAC.
Because claims against the individual Defendants in their official capacities and the NCDAC are

duplicative, the Court need not address whether Plaintiff stated claims against the individual
Defendants in this regard. See Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004). The
Court, therefore, will dismiss the ADA and Rehab Act claims against the individual Defendants
in both capacities.
B. Constitutional Claims
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 by a “person” acting under color of state law. See 42 U.S.C. § 1983; Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Health & Hosp. Corp. of Marion Cnty. v.

Talevski, 599 U.S. __, 143 S.Ct. 1444 (2023).
1. NCDAC
Plaintiff purports to assert constitutional claims under § 1983 against the NCDAC.
However, “neither a state nor its officials acting in their official capacities are ‘persons’ under §
1983.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Therefore, the NCDAC is
not a “person” under § 1983. See Fox v. Harwood, 2009 WL 1117890, at *1 (W.D.N.C. April
24, 2009). Plaintiff's § 1983 claims against the NCDAC are, therefore, dismissed with prejudice.
2. Official Capacity Claims
“[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. Michigan Dept. 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, as noted 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). Plaintiff’s official
capacity constitutional claims against the individual Defendants, therefore, do not survive initial
review and will be dismissed.
3. First Amendment
An inmate has a clearly established First Amendment right to be free from retaliation for
filing lawsuits. See Booker v. S.C. Dep’t of Corrs., 855 F.3d 533, 540 (4th Cir. 2017);
Thompson v. Commonwealth of Va., 878 F.3d 89, 110 (4th Cir. 2017). Inmates also have a
protected First Amendment right to complain to prison officials about prison conditions and
improper treatment by prison employees that affect them. See Patton v. Kimble, 717 Fed. App’x

271, 272 (4th Cir. 2018).
To state a colorable First Amendment retaliation claim, a plaintiff must allege that (1) he
engaged in protected First Amendment activity, (2) the defendant took some action that
adversely affected his First Amendment rights, and (3) there was a causal relationship between
his protected activity and the defendant’s conduct. Martin v. Duffy, 977 F.3d 294, 299 (4th Cir.
2020) (quotation marks and citation omitted). Retaliation claims brought by prisoners, however,
are treated with skepticism because every act of discipline by a prison official is retaliatory in
that it responds directly to prisoner misconduct. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir.
1994). Moreover, bare or conclusory assertions of retaliation are insufficient to establish a
retaliation claim. Id., 40 F.3d at 74.
Here, Plaintiff alleges that, when he complains “to prison officials that the items provided
by the Defendants do not accommodate [his] disability, Defendants retaliate by making [his] life
and living conditions more harsh and in some instances physically painful.”3 [Doc. 15 at 12; see
id. at 28-29]. Plaintiff also alleges, however, that he has never communicated with Defendants

Ishee or Coleman and Plaintiff alleges nothing suggesting that these Defendants were personally
aware of Plaintiff’s grievances or other civil litigation or took any retaliatory action with respect
thereto. As such, taking Plaintiff’s allegations as true and giving him the benefit of every
reasonable inference, Plaintiff First Amendment retaliation claim against Defendants Feaster,
Teague, Jardon, and Carson pass initial review as not clearly frivolous. Plaintiff, however, has
failed to state a claim in this regard against Defendants Ishee or Coleman and these claims will
be dismissed.
4. Eighth Amendment
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments,” U.S.

Const. amend. VIII, and 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,

3 Plaintiff also alleges that he “expressed grievances against prison officials and those prison officials
retaliated by, in part, depriving [him] of previously approved and supplied disability accommodations,
intentionally ignoring or disregarding [his] legitimate requests for disability accommodations, leaving
[Plaintiff] exposed to the elements without proper clothing, and transferring [him] from facility to facility
solely for the purpose of harassment and retaliation.” [Id. at 26]. This allegation, however, does not
support his retaliation claim because Plaintiff does not allege any personal participation by the named
Defendants, but only generically references “prison officials.”
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 a 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 v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993).
Plaintiff alleges that Defendants violated his Eighth Amendment right to be free from
cruel and punishment because the alleged events “were committed either on [Defendants’]
instruction … or with the knowledge and consent of [Defendants] or were thereafter approved
and ratified by [them]” and that Defendants’ “acts and/or omissions… were done with the
purpose and intent to cause [Plaintiff] to suffer cruel and unusual punishment.” [Doc. 15 at 29].
Taking Plaintiff’s allegations as true and giving him the benefit of every reasonable inference,
Plaintiff has nonetheless failed to state a claim against the individual Defendants under the
Eighth Amendment. The conditions alleged by Plaintiff, while harsh and uncomfortable, do not
rise to the level of an extreme deprivation necessary to state an Eighth Amendment claim based
on conditions of confinement. Moreover, Plaintiff’s allegations fail to show that the individual
Defendants were subjectively aware of an objectively “excessive risk to [Plaintiff’s] health and
safety.” See Farmer, 511 U.S. at 837. As such, the Court will dismiss Plaintiff’s Eighth
Amendment claim based on the conditions of his confinement.

Plaintiff also purports to state a claim against Defendants Ishee, Feaster, Teague, Jardon,
and Carson for the failure to train or supervise employees. [See Doc. 15 at 30-31]. To impose
liability on a supervisor for the failure to train subordinates under § 1983, a plaintiff must plead
and prove that: (1) the subordinates actually violated the plaintiff’s constitutional or statutory
rights; (2) the supervisor failed to train properly the subordinates, thus, showing a “deliberate
indifference” to the rights of the persons with whom the subordinates come into contact; and (3)
this failure to train actually caused the subordinates to violate the plaintiff’s rights. City of
Canton v. Harris, 489 U.S. 378, 388-92, 109 S.Ct. 119 (1989) (holding that “the inadequacy of
… training may serve as a basis for § 1983 liability only where the failure to train amounts to

deliberate indifference to the rights of person with whom the [subordinates] come into contact”);
see also Doe v. Broderick, 225 F.3d 440, 456 (4th Cir. 2000).
Here, Plaintiff baldly alleges that Defendant Ishee failed to properly train or supervise
Defendants Coleman, Feaster, Teague, Jardon and Carson; that Defendant Feaster failed to train
or supervise Defendants Teague, Jardon, and Carson; that Defendant Teague failed to properly
train or supervise Defendants Jardon and Carson; and that Defendant Jardon failed to train or
supervise Defendant Carson. [Id. at 30]. These allegations are wholly insufficient to state a
claim under § 1983 based on the failure to train or supervise. The Court will also dismiss this
claim.
5. Fourteenth Amendment
Plaintiff asserts that Defendants violated his Fourteenth Amendment right to equal
protection. [Doc. 15 at 30]. To state an equal protection claim, Plaintiff must allege that he has
been treated differently from others with whom he is similarly situated, and that the unequal
treatment was the result of intentional or purposeful discrimination. See Morrison v. Garraghty,

239 F.3d 648, 654 (4th Cir. 2001). In doing so, the plaintiff must set forth “specific, non-
conclusory factual allegations that establish an improper [discriminatory] motive.” Williams v.
Hansen, 326 F.3d 569, 584 (4th Cir. 2003) (quoting Trulock v. Freeh, 275 F.3d 391, 405 (4th
Cir. 2001)). Even taking Plaintiff’s allegations as true and giving him the benefit of every
reasonable inference, Plaintiff has failed to state a claim for violation of his Fourteenth
Amendment equal protection rights. That is, Plaintiff alleges only that Defendants “have
discriminated against [him] because of [his] physical ability.” [Doc. 15 at 7]. He does not set
forth specific, non-conclusory allegations establishing that Defendants’ alleged acts and
omissions were the result of any intentional or purposeful discrimination or that he is being

treated differently than similarly situated prisoners at Foothills. See Morrison v. Garraghty, 239
F.3d 648, 654 (4th Cir. 2001). This claim will also be dismissed.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Amended Complaint survives initial review under
28 U.S.C. §§ 1915(e) and 1915A in accordance with the terms of this Order.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff’s ADA and Rehab Act claims against
Defendant NCDAC pass initial review and that Plaintiff’s ADA and Rehab Act claims against
the individual Defendants are DISMISSED as duplicative. Plaintiff’s First Amendment
retaliation claim against Defendants Jardon, Feaster, Teague, and Carson in their individual
capacities only also passes initial review. All remaining claims are DISMISSED for Plaintiff's
failure to state a claim for relief. 28 U.S.C. 8§ 1915(e) and 1915A.
IT IS FURTHER ORDERED that Plaintiff has failed to state a claim for relief against
Defendants Ishee and Coleman and these Defendants are, therefore, DISMISSED.
IT IS, THEREFORE, ORDERED that Clerk of Court shall commence the procedure
for waiver of service as set forth in Local Civil Rule 4.3 for Defendants Jardon, Feaster, Teague,
and Carson, who are alleged to be current or former employees of the North Carolina
Department of Adult Corrections.
IT IS FURTHER ORDERED that Clerk is directed to mail one (1) blank summons
form to Plaintiff for Plaintiff to fill out and identify Defendant North Carolina Department of
Adult Corrections in the summons for service of process, and then return the summons to the
Court. Plaintiff is required to provide the necessary information for the U.S. Marshal to
effectuate service. Once the Court receives the summons from Plaintiff, the Clerk shall then
direct the U.S. Marshal to effectuate service upon Defendant North Carolina Department of
Adult Corrections.
The Clerk is also instructed to mail Plaintiff an Opt-In/Opt-Out form pursuant to
Standing Order 3:19-mc-00060-FDW.
IT IS SO ORDERED.
Signed: September 22, 2023
Labor Lhe
Graham C. Mullen ee
United States District Judge mt

14

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10260240. Public record. Not legal advice.