Williams v. Ishee

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:23-cv-00214-MR-WCM

ANDRE DAVID WILLIAMS, )

)

Plaintiff, )

)

vs. )

)

TODD E. ISHEE, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on initial review of the pro se

Complaint. [Doc. 1]. The Plaintiff is proceeding in forma pauperis. [Doc. 8].

I. BACKGROUND

The pro se Plaintiff, a prisoner in the North Carolina Department of

Adult Corrections (NCDAC),1 filed the instant action pursuant to 42 U.S.C. §

1983 addressing incidents that allegedly occurred at the Marion Correctional

Institution, where he is still incarcerated.

1 The Plaintiff is serving a 10-year sentence for assault with a deadly weapon with intent

to kill or seriously injure (principal) and possession of a firearm by a felon (principal). See

https://webapps.doc.state.nc.us/opi/viewoffender.do?method=view&offenderID=094984

1&searchLastName=williams&searchFirstName=andre&searchMiddleName=d&search

DOBRange=0&listurl=pagelistoffendersearchresults&listpage=1 (last accessed Oct. 24,

2023); Fed. R. Evid. 201.

He names as Defendants in their individual and official capacities:

Todd E. Ishee, the secretary of the Department of Adult Corrections;

Ben Carver, the Marion CI warden; and Keven R. Chung, “Medical

Staff” at Marion CI. [Doc. 1 at 2-3]. The Plaintiff alleges that, on February

28, 2023, while in the medical room in full restraints, he was “violently

choked” by Defendant Chung, and that Officers Reel and Smith were

present during this assault. [Doc. 1 at 5]. For injury, the Plaintiff claims to

have suffered “welps on neck, neck pain, pain swallowing redness of

neck area.” [Id.] (errors uncorrected). He seeks a declaratory judgment,

preliminary and permanent injunctive relief, compensatory and punitive

damages, costs, a jury trial, and any additional relief that the Court deems

just, proper, and equitable. [Id. at 14].

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. 166, 143 S.Ct. 1444 (2023).

The body of the Complaint contains allegations against individuals who

are not named as defendants in the caption as required by Rule 10(a) of the

Federal Rules of Civil Procedure. [See, e.g., Doc. 1 at 5 (referring to Officers

Reel and Smith)]; see Fed. R. Civ. P. 10(a) (“The title of the complaint must

name all the parties[.]”); Myles v. United States, 416 F.3d 551 (7th Cir. 2005)

(“[T]o make someone a party the plaintiff must specify him in the caption and

arrange for service of process.”); Perez v. Humphries, No. 3:18-cv-107-

GCM, 2018 WL 4705560, at *1 (W.D.N.C. Oct. 1, 2018) (“A plaintiff’s failure

to name a defendant in the caption of a Complaint renders any action against

the purported defendant a legal nullity.”). The allegations directed at

individuals not named as Defendants are dismissed without prejudice.

The Plaintiff purports to sue the Defendants, who are state officials, in

their individual and official capacities. However, “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. Dep’t 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, 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). As such, the Plaintiff’s

claims against Defendants in their official capacities for damages do not

survive initial review and will be dismissed.

The Plaintiff names as Defendants Secretary Ishee and Warden

Carver. To establish liability under 42 U.S.C. § 1983, a plaintiff must show

that these defendants “acted personally” to cause the alleged violation. See

Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (citation omitted). As

such, the doctrine of respondeat superior does not apply in actions brought

under § 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

A supervisor can only be liable where (1) he knew that his subordinate “was

engaged in conduct that posed a pervasive and unreasonable risk of

constitutional injury;” (2) his response showed “deliberate indifference to or

tacit authorization of the alleged offensive practices;” and (3) there was an

“affirmative causal link” between her inaction and the constitutional

injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotation

marks omitted).

The Plaintiff claims that Defendant Ishee “is legally responsible for the

overall operation of the Department and each institution under its jurisdiction,

including Marion Correctional Institution;” and that Defendant Carver “is

legally responsible for the operation of Marion Correctional Institution and for

the welfare of all inmates in that prison.” [Doc. 1 at 13]. The Plaintiff alleges

no personal participation by these Defendants, nor does he state any facts

to plausibly allege supervisory liability. See Fed. R. Civ. P. 8(a)(2) (requiring

a “short and plain statement of the claim showing that the pleader is entitled

to relief”); Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory

allegations, unsupported by specific allegations of material fact are not

sufficient); Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002)

(a pleader must allege facts, directly or indirectly, that support each element

of the claim). Instead, the Plaintiff’s claim appears to rely on a theory of

respondeat superior which, as discussed supra, cannot support a § 1983

claim. See Monell, 436 U.S. at 694. The claims against Defendants Ishee

and Carver are, therefore, dismissed.

The Plaintiff claims that Defendant Chung used excessive force

against him. 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 U.S. 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, 559 U.S. 34, 38 (2010).

Taking the Plaintiff’s allegations as true for the purposes of initial

review and drawing all reasonable inferences in his favor, the Plaintiff’s

Eighth Amendment claim against Defendant Chung is not clearly frivolous.

The Plaintiff’s Complaint includes a request for preliminary injunctive

relief, i.e., an injunction “ordering the Defendants … to stop providing [him]

medical attention from this particular physician.” [Doc. 1 at 14]. Preliminary

injunctive relief is an extraordinary remedy afforded before trial at the

discretion of the district court. In re Microsoft Corp. Antitrust Litig., 333 F.3d

517, 524-26 (4th Cir. 2003). It is an extraordinary remedy never awarded as

of right. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). In

each case, courts “must balance the competing claims of injury and must

consider the effect on each party of the granting or withholding of the

requested relief.” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542

(1987). To obtain a preliminary injunction, the plaintiff must establish (1) that

he is likely to succeed on the merits; (2) that he is likely to suffer irreparable

harm in the absence of preliminary relief; (3) that the balance of equities tips

in his favor; and (4) that an injunction is in the public interest. Winter, 555

U.S. at 20. The Plaintiff has not established any of the elements that would

warrant preliminary injunctive relief. Therefore, his request for preliminary

injunctive relief is denied.

IV. CONCLUSION

The Complaint passes initial review against Defendant Chung for the

use of excessive force. The claims against the Defendants in their official

capacities for damages are dismissed with prejudice, and the remaining

claims are dismissed without prejudice.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The Complaint [Doc. 1] passes initial review against Defendant

Chung for the use of excessive force.

2. The claims against the Defendants for damages in their official

capacities are DISMISSED WITH PREJUDICE.

3. The Plaintiffs remaining claims are DISMISSED WITHOUT

PREJUDICE.

4. 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 R. Chung, 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: November 6, 2023

Se ee

Chief United States District Judge AS