The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:23-cv-00176-MR
DUSTIN MICHAEL GRIMES, )
)
Plaintiff, )
)
vs. ) ORDER
)
)
JONATHAN CALL, et al., )
)
Defendants. )
___________________________ )
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 seeks to proceed in forma pauperis. [Doc. 2].
I. BACKGROUND
Pro se Plaintiff Dustin Michael Grimes (“Plaintiff”) was a detainee at
the Wilkes County Jail (the “Jail”) in Wilkesboro, North Carolina. He filed this
action pursuant to 42 U.S.C. § 1983 on September 27, 2023, against
Defendants Jonathan Call and FNU Wingler, identified as Jail Lieutenants;
Defendant FNU Whitley, identified as a Jail Major; and Defendant Michael
Absher, identified as a Jail Officer. [Doc. 1 at 1-3]. Plaintiff purports to sue
Defendants in their individual and official capacity. [Id. at 4].
The Complaint is less than clear, but Plaintiff appears to allege the
following. On or about March 13 and 14, 2023, Plaintiff had an “incident”
with Defendant Absher, which Defendant Call reviewed on March 15, 2023.
According to the Jail Incident Report Plaintiff attached to his Complaint, the
Plaintiff punched Defendant Absher twice after Defendant Absher entered
Plaintiff’s cell in response to Plaintiff banging his head on the cell door and
back kicking the door. [Doc. 1 at 17]. As a result of that incident, Plaintiff
was placed in lockdown for 60 days. [See id.]. Defendant Call punished
Plaintiff in some unspecified way that “violated [Plaintiff’s] right to
communicate with counsel,” and then sought “further trial-punishment”
through Defendants Wingler and Whitley, who filed criminal charges against
Plaintiff “for the exact same action.” [Id. at 4]. An attachment to the
Complaint shows that Plaintiff was charged in the District Court of Wilkes
County with malicious conduct by a prisoner in relation to this incident. [See
id. at 15].
On July 28, 2023, Plaintiff was in a fight with another inmate in which
Plaintiff used a tablet as a weapon to strike the other inmate. [Id. at 12].
“Partial” Defendant Call investigated the incident. Defendant Call claimed to
have done Plaintiff’s “Hearing-Trial as the Hearing Officer,” proceeded to
punish the Plaintiff, and then sought further punishment “for the exact same
action” through Defendants Wingler and Whitley, who again filed criminal
charges against Plaintiff.1 [Id.; see id. at 14]. An attachment to the Complaint
shows that Plaintiff was charged in the District Court of Wilkes County with
simple assault and injury to personal property in relation to this incident.
[Doc. 1 at 10].
Finally, Defendant Call “stonewalled” Plaintiff’s unidentified grievances
and told Plaintiff that, “This is not a grievable matter.” [Id. at 5]. When
Plaintiff tried to appeal, Defendant Call threatened Plaintiff with more
lockdown time if Plaintiff persisted in filing false grievances. [Id.].
Plaintiff claims that Defendants violated his rights under the First, Fifth,
Sixth, Eighth, Tenth, and Fourteenth Amendments, including “[p]retrial
punishment [and] attempting Double-Jeopardy.” [Id. at 2]. Plaintiff alleges
that he was “mentally, emotionally, & financially injured,” including lost wages
from incarceration. [Id. at 6]. Plaintiff seeks monetary and injunctive relief,
including that his state criminal charges be “retract[ed]-quash[ed].” [Id. at 8].
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
1 Plaintiff submitted a Jail Incident Report with his Complaint that was prepared by Joshua
McGrady and approved by Defendant Call. [See Doc. 1 at 12]. McGrady recommended
that Plaintiff be locked down for 90 days and have no privileges for 14 days for assaulting
an inmate with a weapon, participating in a fight, and damaging Jail property. [Id.].
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
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). Although Plaintiff alleges that his rights
under the First, Fifth, Sixth, Eighth, Tenth, and Fourteenth Amendments
were violated, the Court will address only those claims fairly raised by
Plaintiff’s allegations.
A. Official Capacity Claims
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). Here, Plaintiff does not allege that any
official policy was the moving force behind any constitutional injury. [See
Doc. 1]. Plaintiff, therefore, has failed to state an official capacity claim
against any Defendant in this matter and these claims will be dismissed.
B. Retaliation for Filing Grievances
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).
More, bare or conclusory assertions of retaliation are insufficient to establish
a retaliation claim. Id., 40 F.3d at 74.
Taking Plaintiff’s allegations are true and giving him the benefit of every
reasonable inference, Plaintiff has nonetheless failed to state a retaliation
claim. That is, Plaintiff alleges that Defendant Call threatened him with
punishment if Plaintiff filed more false grievances and that Defendant Call
told him the matter was not “grievable.” Plaintiff, however, does not allege
that Defendant Call actually took any adverse action against Plaintiff for
Plaintiff having filed grievances or that Plaintiff’s First Amendment rights
were affected. The Court, therefore, will dismiss this claim.
C. Right to Redress of Grievances
“[T]he Constitution creates no entitlement to grievance procedures or
access to any such procedure voluntarily established by a state.” Adams v.
Rice, 40 F.3d 72, 75 (4th Cir. 1994). “An inmate thus cannot bring
a § 1983 claim alleging denial of a specific grievance procedure.” Booker v.
S.C. Dep't of Corr., 855 F.3d 533, 541 (4th Cir. 2017). As such, to the extent
Plaintiff claims that Defendants violated any right to redress of grievances,
he has failed.
D. Double Jeopardy
Plaintiff claims that he was subject to double jeopardy because
Defendants Wingler and Whitley “filed criminal charges against [Plaintiff]”
when Plaintiff was already being punished by the Jail for his conduct in March
and July of 2023. The Fifth Amendment’s Double Jeopardy Clause does not
protect a prisoner or detainee from being charged for the same misconduct
that resulted in prison disciplinary sanctions. United States v. Green, 508
Fed. App’x 206, 206 (4th Cir. 2013) (citations omitted). Plaintiff, therefore,
fails to state a claim based on double jeopardy and the Court will dismiss it.
E. IFP Petition
On November 3, 2023, Captain Wyatt from the Wilkes County Jail
called the Clerk’s Office to report that Plaintiff is deceased and that she would
be returning the Court’s mail marked “return to sender.” [11/3/2023 (Court
Only) Docket Entry]. Because Plaintiff is deceased, the Court will grant
Plaintiff in forma pauperis status for the limited purpose of initial review.
Typically, when a party dies during the pendency of an action, the opposing
party files a Suggestion of Death with the Court, which is served on the
deceased party’s successor or representative. See Fed. R. Civ. P. 25(a)(1).
Here, because Plaintiff’s Complaint had not passed initial review and,
therefore, no Defendants had been served, no Suggestion of Death has or
will be filed. Moreover, the Court is without information regarding Plaintiff's
successors.
IV. CONCLUSION
In sum, Plaintiff's Complaint fails initial review because he has failed to
state a claim upon which relief may be granted. Because Plaintiff is
deceased and cannot amend his Complaint to state a claim for relief, the
Court will dismiss his Complaint without prejudice. Should Plaintiff's estate
wish to pursue any of the dismissed claims Plaintiff purports to pursue here,
it may refile this action on Plaintiff's behalf.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff's Complaint fails initial
review and is DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Order for Prisoner Trust Account
Statement [Doc. 4] is hereby VACATED.
The Clerk is instructed to terminate these proceedings.
IT IS SO ORDERED.
Signed: November 8, 2023
Martifi Reidinger ey
Chief United States District Judge Ale