“Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” (internal quotation marks omitted)
How later courts described this case
- “Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” (internal quotation marks omitted)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:23-cv-00442-MR
KIMBERLY MICHELLE BROWN, )
)
Plaintiff, )
)
vs. )
)
KEVIN LAMBERT, ) ORDER
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on initial review of the pro se
Complaint [Doc. 1]. The Plaintiff is proceeding in forma pauperis. [Doc. 6].
I. BACKGROUND
The pro se incarcerated Plaintiff filed this action pursuant to 42 U.S.C.
§ 1983 addressing incidents that allegedly occurred at the Anson
Correctional Institution, where she still resides. The Plaintiff names as the
sole Defendant Kevin Lambert, a unit manager at Anson CI.1 She claims
that Defendant Lambert gave her privileges in exchange for sexual favors
and, when she attempted to stop this arrangement, he “became violent,”
began “writing [her] up and threatening [her],” and prevented her from
1 According to the Plaintiff, Defendant Lambert resigned following an investigation. [Doc.
1 at 4].
moving to another unit. [Doc. 1 at 2-3]. For injury, the Plaintiff claims that
she experienced fear, extreme depression, and emotional distress. [Id. at
3]. She seeks damages for “emotional distress and sexual assault.” [Id. at
5].
II. STANDARD OF REVIEW
Because the 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 a complaint
raises an indisputably meritless legal theory or is founded upon clearly
baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se
complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the liberal construction requirement will not permit a
district court to ignore a clear failure to allege facts in his Complaint which
set forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
III. DISCUSSION
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).
Construing the allegations liberally, the Plaintiff appears to assert §
1983 claims for sexual abuse and retaliation, and claims under North
Carolina law for assault and battery.
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). “There can be little doubt that sexual abuse is repugnant to
contemporary standards of decency, and that allegations of sexual abuse
can amount to an Eighth Amendment violation.” Jackson v. Holley, 666 F.
App’x 242, 244 (4th Cir. 2016); see Woodford v. Ngo, 548 U.S. 81, 118 (2006)
(Stevens, J., dissenting) (“Accordingly, those inmates who are sexually
assaulted by guards, or whose sexual assaults by other inmates are
facilitated by guards, have suffered grave deprivations of their Eighth
Amendment rights.”); Farmer v. Brennan, 511 U.S. 825, 834 (1994) (“Being
violently assaulted in prison is simply not part of the penalty that criminal
offenders pay for their offenses against society.” (internal quotation marks
omitted)).
Taking the Plaintiff’s allegations as true for the purposes of this initial
review and drawing all reasonable inferences in her favor, the Plaintiff’s claim
of sexual abuse is not clearly frivolous. The Court will exercise supplemental
jurisdiction over the Plaintiff’s North Carolina assault and battery claims at
this time. See 28 U.S.C. § 1367.
To state a colorable First Amendment retaliation claim, a plaintiff must
allege that (1) she engaged in protected First Amendment activity, (2) the
defendant took some action that adversely affected her First Amendment
rights, and (3) there was a causal relationship between her 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.
Taking the Plaintiff’s allegations as true for the purposes of this initial
review and drawing all reasonable inferences in her favor, Plaintiff’s
retaliation claim is not clearly frivolous.
IV. CONCLUSION
In sum, the Plaintiff’s § 1983 claims for sexual abuse and retaliation
pass initial review, and the Court exercises supplemental jurisdiction over
the Plaintiff’s North Carolina assault and battery claims.
ORDER
IT IS, THEREFORE, ORDERED that the Complaint [Doc. 1] passes
initial review against Defendant Lambert under § 1983 for sexual abuse and
retaliation, and the Court exercises supplemental jurisdiction over the
Plaintiff’s North Carolina assault and battery claims.
IT IS FURTHER ORDERED that the Clerk of Court shall commence
the procedure for waiver of service as set forth in Local Civil Rule 4.3 for
Defendant Kevin Lambert, who is alleged to be a current or former
employee of the North Carolina Department of Public Safety.
The Clerk is respectfully instructed to mail the Plaintiff an Opt-In/ Opt-
Out form pursuant to the Standing Order in Misc. Case. No. 3:19-mc-00060-
FDW and a copy of this Order.
IT IS SO ORDERED.
Signed: August 18, 2023
5 a sal
< Reidinger Ls,
Chief United States District Judge “lly