The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:23-cv-00148-GCM
CHRISTOPHER M. LOVILL, )
)
Plaintiff, )
)
vs. )
) ORDER
)
FNU TORRES, et al., )
)
Defendants. )
____________________________________)
THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, filed
under 42 U.S.C. § 1983. [Doc. 1]. See 28 U.S.C. §§ 1915(e)(2); 1915A. Plaintiff is proceeding
in forma pauperis. [Docs. 2, 6].
I. BACKGROUND
Pro se Plaintiff Christopher M. Lovill (“Plaintiff”) is a prisoner of the State of North
Carolina currently incarcerated at Alexander Correctional Institution (“Alexander”) in
Taylorsville, North Carolina. On September 18, 2023, he filed this action pursuant to 42 U.S.C.
§ 1983 against Defendants FNU Torres and FNU Trivette, identified as Correctional Officers at
Alexander, in their individual capacities only. [Doc. 1]. Plaintiff alleges as follows.
On August 1, 2022, at approximately 6:40 p.m., in restrictive housing at Alexander,
Defendants took Plaintiff to the shower. While Plaintiff was locked in the shower, Defendants
“ransack[ed]” Plaintiff’s cell, which Plaintiff could hear from the shower. At approximately
7:15 p.m., Defendants returned to escort Plaintiff back to his cell. Plaintiff was handcuffed
behind his back and opened the shower door. Plaintiff noticed some of his property on the floor
outside of his cell. Plaintiff tried to push it back into his cell with his feet. Defendants then
“forcefully grabbed [Plaintiff] one on each side and literally threw [Plaintiff] back into the
shower.” Plaintiff’s “leg connected with the door to the shower where the tray slot folds down
severely gashing the inside of [his] right calf and ankle.” One of the Defendants closed the door
to the shower, “which cut the tops of [Plaintiff’s] feet.” Defendant returned to Plaintiff’s cell and
again “threw out [his] property.” Plaintiff was lying on the floor in pain and requested they get
the officer-in-charge or Sergeant Wyatt. Sergeant Wyatt and another officer responded. Plaintiff
was taken to medical, where it was determined he needed outside medical care for stitches.
Plaintiff received 15 stitches in his calf and three in his ankle. He also suffered a torn left rotator
cuff. Plaintiff has since received two steroid injections to treat his shoulder injury, which have
not helped. Plaintiff will likely need surgery. [Id. at 5].
Plaintiff claims that Defendants violated his Eight Amendment right to be free from cruel
and unusual punishment. [Id. at 3]. For injuries, Plaintiff claims he suffered a torn left rotator
cuff, “gashes” in his right calf and ankle requiring stitches, and mental and emotional distress.
[Id. at 6]. Plaintiff seeks monetary relief only. [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. 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. 166, 143 S.Ct. 1444 (2023).
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). 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 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
USS. at 320-21.
Furthermore, the Supreme Court has made clear that “[a]n inmate who is gratuitously
beaten by guards does not lose his ability to pursue an excessive force claim merely because he
has the good fortune to escape without serious injury.” Wilkins v. Gaddy, 130 S. Ct. 1175,
1178-79 (2010).
Taking Plaintiffs allegations as true for the purposes of this initial review and drawing
all reasonable inferences in his favor, Plaintiff's Eighth Amendment excessive force claim
against Defendants Torres and Trivette is not clearly frivolous and survives initial review.
IV. CONCLUSION
In sum, Plaintiff's Eighth Amendment claim against Defendants Torres and Trivette
based on the use of excessive force survives initial review.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff's Eighth Amendment excessive force
claim against Defendants Torres and Trivette passes initial review.
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 FNU Torres and FNU
Trivette, who are alleged to be current or former employee of the North Carolina Department of
Public Safety.
The Clerk is also instructed to mail Plaintiff an Opt-In/Opt-Out form pursuant to
Standing Order 3:19-mc-00060-FDW.
Signed: October 5, 2023
Libor l Uae
Graham C. Mullen ee
United States District Judge mt