The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:23-cv-00576-FDW
TERRELL HOWARD, )
)
Plaintiff, )
)
vs. ) ORDER
)
)
MECKLENBURG COUNTY JAIL, )
)
Defendant. )
____________________________________)
THIS MATTER is before the Court on initial review of Plaintiff’s Complaint [Doc. 1]
filed under 42 U.S.C. § 1983. See 28 U.S.C. §§ 1915(e) and 1915A. Plaintiff is proceeding in
forma pauperis. [Docs. 2, 7].
I. BACKGROUND
Pro se Plaintiff Terrell Howard (“Plaintiff”) is a detainee at the Mecklenburg County Jail
(the “Jail”) in Charlotte, North Carolina. He filed this action on September 13, 2023, pursuant to
42 U.S.C. § 1983, naming the Jail as the sole Defendant in this matter. [Doc. 1]. Recently, Plaintiff
filed a statement under penalty of perjury, which the Court construes as an addendum to Plaintiff’s
Complaint. [Doc. 5]. Plaintiff alleges that he has been detained at the Jail since February 6, 2020,
and he is subject to unsafe living conditions there. [Doc. 5 at 1]. Plaintiff alleges that there is
black mold at the Jail causing him severe stomach pain, weight loss, vomiting, loss of appetite,
and diarrhea. [Id.]. He does not allege what constitutional right he claims has been violated.
[See Doc. 1 at 3]. Plaintiff seeks monetary relief only. [Doc. 1 at 5].
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.
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).
Taking Plaintiff’s allegations as true and giving Plaintiff the benefit of every reasonable
inference, Plaintiff has failed to state a claim for relief. A correctional institution is not a “person”
subject to suit under § 1983, Brooks v. Pembroke Jail, 722 F.Supp. 1294, 1301 (E.D.N.C. 1989),
and Plaintiff names no other Defendants in this matter. The Court will dismiss the Jail as a
Defendant. The Court, however, will allow Plaintiff to amend his Complaint to state a claim for
relief, if the facts support such an amendment. In allowing Plaintiff to amend his Complaint, the
Court instructs Plaintiff that, 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). Moreover, suits against an officer in his official
capacity “generally represent only another way of pleading an action against an entity of which an
officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099 (1985) (1985)
(quoting Monell v Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 690 n. 55, 98 S.Ct.
2018, 2035 (1978)). The Office of Sheriff is not liable under § 1983 for an employee’s acts “unless
action pursuant to official municipal policy of some nature caused [the] constitutional tort.”
Collins v. City of Harker Heights, 503 U.S. 115, 120-21, 112 S.Ct. 1061, 1066 (quoting Monell,
436 U.S. at 691, 98 S.Ct. at 2036). That is, “[f]or a governmental entity to be liable under section
1983, the official policy must be the moving force of the constitutional violation.” Moore v. City
of Creedmoor, 345 N.C. 356, 366, 481 S.E.2d 14, 21 (1997) (internal quotation marks and citations
omitted). “Thus, the entity’s ‘policy or custom’ must have played a part in the violation of federal
law.” Id. (quoting Monell, 436 U.S. 658, 694, 98 S.Ct. at 2037-38).
IV. CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiff’s Complaint fails initial
review. The Court will allow Plaintiff thirty (30) days to amend his Complaint, if he so chooses,
to properly state a claim upon which relief can be granted against a proper defendant. Any
amended complaint will be subject to all timeliness and procedural requirements and will
supersede the Complaint. Piecemeal amendment will not be permitted. Should Plaintiff fail to
timely amend his Complaint in accordance with this Order, the Court will dismiss this action
without prejudice.!
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff shall have thirty (30) days in which to
amend his Complaint in accordance with the terms of this Order. If Plaintiff fails to so amend his
Complaint, the matter will be dismissed without prejudice.
IT IS FURTHER ORDERED that Defendant Mecklenburg County Jail is DISMISSED
as a Defendant in this matter.
The Clerk is respectfully instructed to mail Plaintiff a blank prisoner § 1983 form.
IT IS SO ORDERED.
Signed: October 19, 2023
Frank D. Whitney é & yf
United States District Judge * ey
1 Plaintiff is also cautioned to carefully review the Order of Instructions in this case. [See Doc. 3]. While
the Court construed Plaintiff's filing [Doc. 5] as an addendum to his Complaint, it was subject to being
stricken from the record in this matter. Future improper filings may be stricken.